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An Attorney Writes

The Killer Bees Appear to be Winning – An Update on Wake Boats

By | An Attorney Writes, News

By Clifford H. Bloom, Esq.
Bloom Sluggett, PC
Grand Rapids, Michigan
www.bloomsluggett.com

The watercraft commonly known as wakeboard boats, bladder boats, ballast boats or wave boats (hereinafter, “wake boats”) are increasingly becoming a big problem on inland lakes throughout Michigan. Wake boats are not simply a different type of boat, and the problems they create are not just a matter of degree. The problems caused by wake boats are geometrically worse than conventional speed boats. This article will update my earlier Attorney Writes column on wake boats from the Fall 2013 issue of the Riparian Magazine called “Of Mosquitoes and Killer Bees.”

As wake boarding has steadily increased in popularity over the past decade, statewide sales of recreational boats designed to create large, high energy wakes have also increased dramatically. Intense competition among wake boat manufacturers has led to the development of new technologies to improve the ability of their boats to create increasingly high energy wakes. Variable, high volume ballast systems, as well as specially designed hulls, propellers and powertrains, have all led to significant improvement in the performance of wake boats in recent years. The potential for collateral damage to docks, hoists, moored boats and other shoreline equipment as well as the potential for shoreline erosion increases with wake boat displacement, engine and hull size, and speed. Ballast-laden wake boats operating at even moderate speeds are capable of producing surface and near-surface wake related energy levels that substantially exceeds the energy created by even the largest of waves induced by intense summer thunderstorms and/or high winds on inland lakes.

Why are wake boats such a problem on Michigan inland lakes? There are generally at least three problems associated with such watercraft. First, they are having significant negative environmental impacts on lakes. Why? Wake boats are designed not only to throw a larger wake or wave than conventional boats, but their propulsion system and deep wakes disturb the bottom lands of the lake involved to a much greater depth and degree than other boats. Given such boats’ hyper-wave effect, they tend to keep lake waters churned up (and murky) as well as continually disturbing the bottom lands of the shallower lakes, which imperils natural aquatic plants, insects, fish and microscopic life. Many of the adverse environmental impacts remain unknown and untested at this time.

Second, wake boats are destroying natural shorelines, seawalls and other shoreline protective structures throughout the state. Waves created by wake boats are not only larger and more intense than waves created by conventional boats, they also slam into shorelines and seawalls with much greater force and velocity. Many riparian landowners have reported that seawalls and shorelines which have for years been able to withstand conventional boating activity are being destroyed or disrupted in relatively short periods of time by the large waves from wake boats. In many instances, the operators of wake boats are destroying the private property of others.
Finally, wake boats present significant safely hazards to other boaters, swimmers and even people resting or sitting on or in moored boats, swim rafts and docks. It is not uncommon for the wave from a wake boat to cause a person to fall down on or fall off of a dock or moored boat, or even break boat mooring lines.

Unfortunately, on a relatively small lake, just a few wake boats operated irresponsibly (and even sometimes, operated in a normal fashion) can destroy many of the attributes that makes lake living attractive.

What can be done to resolve the problems associated with wake boats? Sadly, in Michigan, the options appear to be limited. Some of the possible solutions are as follows:

A. More vigorous enforcement of existing Michigan boating laws.
Existing Michigan laws already make it illegal to operate a boat at a wake producing speed within a certain distance of the shore, a dock, a swim raft, a swimmer, a fisherman or sailboats. Furthermore, the improper use of a wake boat could constitute careless or even reckless boating in a given situation. More vigorous enforcement of these laws as to wake boats could make a difference.

B. Special watercraft rules.
Pursuant to MCL 324.80108 et seq., the Michigan Department of Natural Resources (the “DNR”), in conjunction with a local municipality, can adopt one or more special watercraft rules for a given inland lake. The special watercraft rules include no wake areas, no wake lakes, a limitation on hours for high speed boating and water skiing and similar restrictions. Unfortunately, however, the statute does not allow the adoption of a special watercraft rule to ban or regulate certain types of boats, such as wake boats. Furthermore, the DNR generally will not agree to adopt a special watercraft rule unless there is a demonstrated safety problem with the lake involved.

C. The possibility of a municipality adopting its own local ordinance regarding wake boats.
Theoretically, a Michigan township, city or village could adopt a local ordinance (without DNR involvement) to regulate or potentially even ban wake boats on some or all lakes within the municipality. Miller v Fabius Township Board, 366 Mich 250 (1962). However, it is also possible that any such regulations are preempted by either state or federal law. Preemption occurs where either the federal or state government has taken away (or severely curtailed) the ability of a local government to regulate a particular area. Michigan courts have not yet ruled regarding whether the special watercraft rule procedure found in MCL 324.80108 et seq. preempts the ability of local municipalities to regulate on-water activities on their own.

D. State legislation.
The Michigan legislature has full power to regulate or even ban wake boats on Michigan inland lakes. However, due to the lobbying power of the boating industry, such regulations are not likely to be enacted. Nevertheless, it should also be pointed out that even if the sale and use of wake boats were prohibited or significantly regulated, it likely would not adversely affect commerce or the boating industry for the simple fact that almost all of the people who would purchase wake boats would buy other conventional boats as an alternative. One common sense legislative proposal would be for the Michigan Legislature to adopt a law or statute that prohibits wake boats from being used on inland lakes under a certain size (for example, 2,000 acres) and to forbid wake boats from being used (or at least their bladders or mega-wave capabilities from being used) within so many feet of the shoreline (for example, 1,000 feet). Such regulations could help minimize the adverse safety, environmental and property damage effects of wake boats.

E. Private civil damages lawsuits.
If a wake boat damages a riparian’s dock, swim raft, seawall or other property, that riparian might have the ability to pursue a damages lawsuit against the operator of the wake boat involved. However, such lawsuits would likely be not only expensive, but could potentially be difficult to win. Damage to seawalls and other property is often cumulative and may not be caused simply by one wake boat.

F. A riparian rights lawsuit.
In Michigan, a lakefront or riparian property owner can only use his or her lake frontage and the surface of the water of the lake in a reasonable fashion. See Thompson v Enz, 379 Mich 667; 154 NW2d 473 (1967); Three Lakes Assn v Kessler, 91 Mich App 371; 285 NW2d 300 (1979); Pierce v Riley, 81 Mich App 39; 264 NW2d 110 (1978); West Michigan & Market Corp v Lakeland Investments, 210 Mich App 505; 534 NW2d 212 (1995), and Square Lake Hills Condo Assn v Bloomfield Twp, 437 Mich 310; 471 NW2d 321 (1991). On a given lake (particularly a smaller inland lake), one or more riparian property owners could theoretically pursue a lawsuit against the operator of a wake boat for unreasonably interfering with the riparian rights of others. To the extent that the wake boat damages a riparian’s lake bottom lands, seawall or other property, or effectively “crowds out” other riparians from using the lake, that could potentially be actionable via a civil lawsuit. The idea is somewhat novel, but could potentially evolve into court sanctioned litigation.

Many of the problems created by wake boats are a result of operators not being thoughtful of their neighbors and fellow riparians. Following the Golden Rule would likely cut down significantly on the problems caused by wake boats.

Should you feel strongly regarding this matter, please contact your local Michigan senator or representative. You can also contact the Michigan Waterfront Alliance at (989) 821-6661 or at www.mwai.org.

“OF MOSQUITOES AND KILLER BEES”

By | An Attorney Writes, News

By Clifford H. Bloom, Esq.
Bloom Sluggett  PC
Grand Rapids, Michigan

There have been many headaches for lakefront property owners in Michigan over the years, particularly with regard to the latest watercraft “toy”. During the 1960’s and 1970’s, the main safety problem on inland lakes was speed boats (with or without water skiers) operated in a fast or unsafe fashion. During the 1980’s, the proliferation of jet skis or personal watercraft struck many riparians as a nuisance and safety hazard. Today, riparians are becoming increasingly concerned about the popularity of “wave boats” (also sometimes referred to as bladder boats, wave runner boats or wakeboard boats). Unfortunately, the impact of wave boats on Michigan inland lakes appears to be dramatically worse than the negative consequences of personal watercraft and conventional speed boats. As one law enforcement officer put it, personal watercraft are mosquitos and problem speed boats are bumble bees, while wave boats are African killer bees!

What is a wave boat? It is a watercraft of speed boat size (or slightly larger in some cases) that uses mechanical means to fill reservoirs (sometimes called “bladders”) with water or other liquid to increase the boat’s weight and mass, and to raise or lower the boat in the water. Depending upon how a wave boat is operated, it can throw a tremendous wake and create huge artificial waves. In fact, such boats are actually designed and intended to throw huge waves. That is part of the fun associated with these watercraft – they create waves that can be “surfed” by water skiers or wake boarders.

There are three major concerns regarding the use of wave boats in inland lakes. First, on many lakes, they have had severe negative environmental impacts. If one of the purposes of a wave boat is to create huge waves, that goal has proven all too successful! On some lakes, wave boats have caused considerable erosion along the shoreline and banks of the lake. Many riparian landowners have had to install new seawalls, rocks and other shoreline protection devices to protect against the huge waves and wakes intentionally generated by wave boats. Some riparians have even had to install larger seawalls to guard against increased erosion, as their existing seawalls are not adequate. Wave boats also keep the water “churned up,” particularly in shallower areas, thus disturbing plant life, fish, aquatic insects and other natural lake organisms.

The second negative impact of wave boats is property destruction (beyond the negative impacts of erosion). Riparians throughout the state have reported instances of moored boats being swamped, boat tether lines snapping, adjoining anchored boats being slammed into each other and similar property destruction caused by the huge waves generated by wave boats.

The third and final problem associated with wave boats involves safety. There have been reports throughout Michigan of people being thrown off swim rafts and even other boats due to the waves generated by a wave boat passing too close. The risk for bodily injury and even death to others associated with wave boats passing too close to (or even running into) other boats, swim rafts, fishing boats, or swimmers is obvious.

Can anything be done to solve the problems associated with wave boats? Many believe that wave boats should only be operated on the Great Lakes (and at some distance from the shore) or in very large inland lakes far away from the shore. However, there is no statute in Michigan that regulates or treats wave boats differently than conventional speed boats or pontoons. For decades, it has been the general policy of the State of Michigan not to “discriminate” against any particular type of boat or watercraft. A cynic might say that state officials believe that any type of substantial regulation of watercraft (including even potentially dangerous watercraft) would adversely impact tourism.

It is likely that the most practical way of minimizing the adverse impacts of wave boats is to vigorously enforce state boating laws. For example, any type of motor or power boat operated at greater than a slow or no-wake speed must remain at least 100 feet away from the shore, a dock or swim raft, a marked swim area, a swimmer or an anchored vessel. Both careless and reckless use of a watercraft are illegal. Water skiers and wakeboard users must also generally remain at least 100 feet away from any dock, swimming area or an anchored vessel. If such regulations are vigorously enforced, it could minimize the dangerous aspects of wave boats and even lessen shoreline erosion, but not completely solve the problem.

In addition, associations for lakes with heavy power boat usage (including potentially, wave boats) should consider “purchasing” extra sheriff marine safety patrol hours. That is a fairly common practice for many populated lakes throughout Michigan. The physical presence of law enforcement officials on a given lake normally does have a big impact upon boating speed and safety.

Some owners of wave boats argue that it is not fair to “profile” or “discriminate against” a particular type of watercraft. However, it cannot be denied that the impacts of wave boats on inland lakes in Michigan (particularly, smaller lakes) can be much more severe than conventional speed boats. Few would argue that it would be appropriate to use a huge cabin cruiser or a “cigar” power boat in a small inland lake. Highly specialized race cars of the type used at the Indianapolis 500 or the Daytona 500 races could be driven on the streets of a residential subdivision, but that certainly would not be safe or reasonable! The problems associated with wave boats are different from other watercraft, not only in kind but also in magnitude and intensity.

Another Lake Road End Case

By | An Attorney Writes, News

Another Lake Road End Case

By Clifford H. Bloom, Esq.
Bloom Sluggett Morgan, PC
Grand Rapids, Michigan
www.bsmlawpc.com

On October 25, 2016, the Michigan Court of Appeals released its unpublished decision in O’Neill, et al. v Moses, et al. (Case Nos. 329227, 330527, 329475 and 330529; 2016 WL 6269360). For purposes of full disclosure, I was co-legal counsel for three of the individuals involved in the lawsuit.

This case involved an unusual private avenue or easement, in that it is “elbow” or “L” shaped. The private road right-of-way approaches the lake at an approximately 45 degree angle and then turns and runs parallel to the lake. The road was created by a 1947 plat, which dedicated the road “to the use of the owners of lots”. The road right-of-way or easement has approximately 149 feet of frontage on the lake.

A number of off-lake property owners claimed that they have the right to install their own dockage, boat hoists and tethers along the lake frontage of the road and to permanently or seasonally moor their boats thereon. The three plaintiffs are riparian property owners who own lots adjacent to the road.

The litigation at the trial court level was long, complex and contentious. The trial court judge entered summary disposition in favor of the plaintiff riparians regarding most of the lake access issues. The trial court generally held that the road was for access only and cannot be utilized for private dockage, boat hoists or boat tethers and that the backlot property owners could not permanently or seasonally moor, store or keep their boats along the lake frontage of the road. The trial court relied heavily upon Thies v Howland, 424 Mich 282 (1985) and Higgins Lake Property Owners Assn v Gerrish Twp, 255 Mich App 83 (2003). The trial court also resolved numerous other issues.

On appeal, the Michigan Court of Appeals generally upheld most of the rulings by the trail court. The Court of Appeals agreed that the private road right-of-way cannot be used by the backlotters for private dockage, boat hoists or boat tethers and that the backlot property owners cannot seasonally or permanently moor, store or keep boats along the waterfront. The Court held that the configuration of the road, as well as the dedication language “to the use of”, was unambiguous and generally meant access only. The Court of Appeals agreed that evidence of historical use was not relevant or admissible due to the unambiguous nature of the plat dedication for the road. Given that the plaintiffs did not request or pursue relief preventing the backlot property owners from lounging, sunbathing and picnicking on the road right-of-way, the Court of Appeals held that the plaintiffs had conceded that issue and the trial court should not have banned those activities on the road right-of-way.

With regard to lake usage, the Court of Appeals did reverse a portion of the trial court’s decision that deemed one of the plaintiffs to have riparian rights on the claimed parallel portion of the road right-of-way in the plat based on 2000 Baum Family Trust v Babel, 488 Mich 136 (2010). That matter was remanded back to the trial court.

There is also a discussion of certain prescriptive easement issues in the Court of Appeals’ decision.

The Court of Appeals did decide a number of other issues (which likely would not be of interest to most riparians), but generally upheld most of the trial court’s decisions. Due to all of the complex issues involved, this article is simply a summary for laypeople of the decisions by the Court of Appeals in the case.

A full copy of the written opinion by the Michigan Court of Appeals in O’Neill v Moses can be reviewed by going to the Court’s website at courts.mi.gov, clicking on “cases, opinions and orders”, click “case search”, enter case number 329227 and click “Court of Appeals”.

“Tips for Sellers of Waterfront Property”

By | An Attorney Writes, News

ATTORNEY WRITES
By Clifford H. Bloom, Esq.
Bloom Sluggett Morgan, PC
Grand Rapids, Michigan
www.bsmlawpc.com

“Tips for Sellers of Waterfront Property”

Potential buyers of waterfront property are not the only ones who face a sometimes daunting task, particularly with regard to “due diligence” investigations. Sellers of waterfront property must also be very careful.

Perhaps the best advice that can be given to someone contemplating the sale of a waterfront property is not to exaggerate or misrepresent any of the characteristics of the property. Should that occur, in many cases, it will come back to “bite” the seller, either in the form of a lawsuit or a bitter purchaser (or both!). For example, if the property involved is a backlot with a shared lake access site, the seller should not advertise or indicate that the property has “deeded access,” riparian rights, or similar potential misrepresentation. Use fully truthful language. Full disclosure (within reason) regarding any problems or “issues” associated with the property is usually the best avenue.

If “deeded access” is normally not a legally-appropriate phrase, what language should the seller of a backlot or off-lake property near the water use to indicate that a nearby lake access is available? Perhaps the best wording is simply to indicate that “limited lake access to Marble Lake is located nearby.” Any language that states or implies that the particular backlot has its own exclusive lake access device, that the backlot has permanent docking and boat mooring privileges, or that the backlot has a lake access device where virtually any use can occur thereon, can get a seller (and potentially, a realtor or real estate agent) in trouble if the wording is not true or fully accurate. This is one area where exaggeration (or what the seller might consider “puffery”) can get a person into trouble.

Prospective buyers are not the only ones who have to be careful regarding the language of the negotiated purchase/sales agreement—sellers must be equally cautious. If there are too many contingencies contained in the written agreement in favor of the buyer, it will make it easier for the buyer to back out of the closing without penalty.

Sellers should make sure that any contract for the sale of their waterfront property contains the appropriate “As-Is” language that makes it clear to the prospective purchaser that there are no warranties, guarantees, representations, promises, etc., being made regarding the waterfront property except, perhaps, the warranties of title to be given in the warranty deed or land contract. A good real estate attorney can assist the seller of a waterfront property with the appropriate language to limit the seller’s liability exposure should the purchaser discover something that he/she does not like about the property after closing.

Given all the “toys” associated with most waterfront properties, it is also very important for the seller (as well as the buyer) to specify in the purchase/sales agreement exactly which specific outdoor items (if any) are included within the sale and sales price. The contract should address such items as dock sections, swim rafts, boat hoists, lawn furniture, boats, sheds, and any other waterfront paraphernalia. With regard to the interior of the house or cottage, movable or removable items such as a washer, dryer, freezer, refrigerator, water softener, trash compactor, and similar items should also be specifically addressed in the purchase/sales agreement.

The seller’s realtor or real estate agent can assist the seller with setting a proposed (and realistic) sales price for the waterfront property involved. If the seller wants to obtain a second opinion regarding the price at which the property should be listed, the seller can retain a third-party real estate appraiser to give a more in-depth analysis of the true fair market value of the waterfront property.

If the seller will be retaining ownership of an adjoining lot or parcel after the sale of the land at issue, the seller may want to consider putting one or more recorded deed restrictions or restrictive covenants on the land to be sold (in order to protect the property being kept by the seller). Such restrictions could include prohibitions on mobile homes, further division of the land, setback minimums, a minimum size requirement for any new dwelling, and other restrictions on use. Any such restrictions should be in place before a purchase/sales agreement is signed (or be inserted into such an agreement) and drafted by a competent real estate attorney.

While much of the advertising today for the sale of waterfront properties occurs via the internet, social media virtual tours, and other techniques in the ethersphere, sellers, realtors, and real estate agents still use temporary outdoor real estate signs fairly extensively for sales. Such signs can be an effective tool for helping to sell real estate. However, it should also be kept in mind that many real estate signs violate not only local municipal sign regulation ordinances, but also potentially the property rights of others, depending on the sign’s location.

Almost all local municipalities have sign regulations. For some municipalities, those regulations are found in the municipality’s zoning ordinance. In other municipalities, the sign ordinance is a “standalone” ordinance separate from the zoning ordinance. Typically, municipal sign regulations allow one or two outdoor real estate “for sale” signs if installed on the property that is listed for sale. Placing a real estate “for sale” sign on any property other than the property being offered for sale (for example, down the road at a street intersection) is often a violation of the local municipal sign regulations. In addition, placing real estate signs on utility poles or installing signs directing prospective buyers to a property located some distance away is almost always unlawful under the local municipality’s sign regulations.

Even apart from municipal sign regulations, placing a real estate sign on the property of another without permission is an unlawful trespass. Some sellers are also under the mistaken assumption that it is permissible to place a real estate sign in the public road right-of-way adjacent to another person’s property without permission, as the public right-of-way normally extends 10 to 20 feet into the lawn of an adjoining property. However, that too would usually be a trespass, unless done with the permission of the adjoining property owner. In most cases, the public road right-of-way is akin to an easement to be used for road purposes only and the adjoining property owner typically still owns the land under the public road easement and has the authority to disallow the private signs of others without permission.

Finally, placing real estate signs at intersections can be downright dangerous, as such signs can interfere with the clear sight distances necessary for motorist visibility and safety.

All real estate transactions have potential tax (local, state, and federal) consequences, particularly for the seller of real property. Issues regarding income taxes, capital gains, and other taxes relating to a lakefront real estate transaction are beyond the scope of this article. Nevertheless, sellers and buyers should consult with the appropriate tax professional early on in the property sale or purchase process.

Title Insurance

By | An Attorney Writes, News

ATTORNEY WRITES
By Clifford H. Bloom, Esq.
Bloom Sluggett Morgan, PC
Grand Rapids, Michigan
www.bsmlawpc.com

In Michigan, it is foolish to purchase riparian or waterfront property without having a title insurance commitment done by a title insurance company for the prospective purchaser to review before closing and for the purchaser to have title insurance on the property once the closing occurs.

In the “old days,” there was no title insurance for purchasers of real property in Michigan. Rather, real estate buyers (or their attorneys) reviewed abstracts or attorney opinions regarding title. An abstract was generally just a listing of all prior recorded documents regarding the property involved going back a certain number of years. Abstracts told lay people very little. A lawyer’s opinion dealt with whether or not the seller had proper title and any limitations upon that title. Neither the old abstracts nor attorney title opinions were insurance as such, and they really did not constitute reliable guarantees of proper title to the purchaser.

Insurance companies eventually introduced a product often referred to as “title insurance.” Title insurance is very important for almost all real property purchases, but particularly so where a waterfront property is involved. The issuance of title insurance is a two-step process. Almost all real estate purchase/sales agreements require the seller to provide to the buyer a “title insurance commitment” before closing and a title insurance policy after closing. Typically, both are issued in an amount equal to the purchase price. A title insurance commitment is usually issued by a title insurance company before closing and allows the prospective purchaser (and potentially, his or her attorney) to see whether the seller has goodtitle, whether there are any encumbrances on the property, what the property taxes are annually, any requirements for closing, and similar matters. Before issuing a title insurance commitment, the title company does a title search of the property, looking for relevant documents recorded with the local county register of deeds regarding the property. Once a title insurance commitment is issued, the title company is affirming that it will issue a final title insurance policy in favor of the buyer after closing with all of the requirements, exceptions and limitations contained in the title insurance commitment. Typically, the seller pays for both the title insurance commitment and the eventual title insurance (although there is generally one overall fee for both), unless the purchase/sales agreement provides otherwise.

A formal final title insurance policy is usually issued (and sent) to the buyer a few months after the closing. The buyer should take great care to preserve the original of the title insurance policy forever. Furthermore, it is often prudent to make copies of the actual original title insurance policy and to store the copies at a different location than the actual original document for safe keeping (that is also true with the deed or land contract after closing and recording). Title insurance insures good title, lack of encumbrances, etc., apart from those items which are expressly “carved out” or exempted in the title insurance commitment and title insurance policy. Normally, the title insurance will pay for attorney fees and costs for an attorney provided by the title insurance company to the buyer to defend the buyer’s title if challenged as well as any damages that might be incurred by the buyer resulting from a title defect or other matter covered by the title insurance policy. It has also become very common for real estate closings in Michigan to occur at the offices of the title insurance company (or its agent or affiliate) and for the title insurance company to provide many of the closing documents (the deed or land contract, any mortgage, a closing statement, etc.) for additional fees.

Why is it so important for title insurance to be provided for riparian properties? There are multiple reasons. First, title insurance verifies that the prospective purchaser will have good and marketable title for the waterfront property involved. Second, it is not uncommon for waterfront properties to have encumbrances such as deed restrictions or an easement, which a prospective purchaser of a waterfront property should know before closing. Third, if the waterfront property is not located on a public road, it is always best to have the title insurance cover and insure any private road or access easement for the property. Fourth, title insurance insures the legal description involved and quite often legal descriptions are proof that a property is waterfront. Finally, title insurance helps give the prospective purchaser “peace of mind”.

Unfortunately, title insurance policies almost never warrant or guarantee riparian rights or the riparian nature of the parcel involved. On occasion, a special rider on an insurance policy can be purchased to cover riparian issues, but those riders tend to be fairly rare and can be quite expensive.

In Michigan, one should almost never buy waterfront property without obtaining a title commitment prior to closing and title insurance for the property that becomes effective at and after closing.

Another Lake Road End Case

By | An Attorney Writes, News

By Clifford H. Bloom, Esq.
Bloom Sluggett Morgan, PC
Grand Rapids, Michigan
www.bsmlawpc.com

On October 25, 2016, the Michigan Court of Appeals released its unpublished decision in O’Neill, et al. v Moses, et al. (Case Nos. 329227, 330527, 329475 and 330529; 2016 WL 6269360). For purposes of full disclosure, I was co-legal counsel for three of the individuals involved in the lawsuit.

This case involved an unusual private avenue or easement, in that it is “elbow” or “L” shaped. The private road right-of-way approaches the lake at an approximately 45 degree angle and then turns and runs parallel to the lake. The road was created by a 1947 plat, which dedicated the road “to the use of the owners of lots”. The road right-of-way or easement has approximately 149 feet of frontage on the lake.

A number of off-lake property owners claimed that they have the right to install their own dockage, boat hoists and tethers along the lake frontage of the road and to permanently or seasonally moor their boats thereon. The three plaintiffs are riparian property owners who own lots adjacent to the road.

The litigation at the trial court level was long, complex and contentious. The trial court judge entered summary disposition in favor of the plaintiff riparians regarding the lake access issues. The trial court generally held that the road was for access only and cannot be utilized for private dockage, boat hoists or boat tethers and that the backlot property owners could not permanently or seasonally moor, store or keep their boats along the lake frontage of the road. The trial court relied heavily upon Thies v Howland, 424 Mich 282 (1985) and Higgins Lake Property Owners Assn v Gerrish Twp, 255 Mich App 83 (2003). The trial court also resolved numerous other issues.

On appeal, the Michigan Court of Appeals generally upheld most of the rulings by the trail court. The Court of Appeals agreed that the private road right-of-way cannot be used by the backlotters for private dockage, boat hoists or boat tethers and that the backlot property owners cannot seasonally or permanently moor, store or keep boats along the waterfront. The Court held that the configuration of the road, as well as the dedication language “to the use of”, was unambiguous and generally meant access only. The Court of Appeals agreed that evidence of historical use was not relevant or admissible due to the unambiguous nature of the plat dedication for the road. Given that the plaintiffs did not request relief preventing the backlot property owners from lounging, sunbathing and picnicking on the road right-of-way, the Court of Appeals held that the plaintiffs had conceded that issue and the trial court should not have banned those activities on the road right-of-way.

With regard to lake usage, the Court of Appeals did reverse a portion of the trial court’s decision that deemed one of the plaintiffs to have riparian rights on the claimed parallel portion of the road right-of-way in the plat based on 2000 Baum Family Trust v Babel, 488 Mich 136 (2010). That matter was remanded back to the trial court. There is also a discussion of certain prescriptive easement issues in the Court’s decision.

The Court of Appeals did decide a number of other issues (which likely would not be of interest to most riparians), but generally upheld most of the trial court’s decisions. Due to all of the complex issues involved, this article is simply a summary for laypeople of the decisions by the Court of Appeals in the case.

A full copy of the written opinion by the Michigan Court of Appeals in O’Neill v Moses can be reviewed by going to the Court’s website at courts.mi.gov, clicking on “cases, opinions and orders”, click “case search”, enter case number 329227 and click “Court of Appeals”.

Docks and Boat Hoists – Everything You Always Wanted to Know

By | An Attorney Writes

By Clifford H. Bloom, Esq.
Bloom Sluggett Morgan, PC
Grand Rapids, Michigan
www.bsmlawpc.com

On inland lakes in Michigan, virtually every property owner has a dock and frequently, a boat hoist as well.  Numerous riparians also have a floating raft or the equivalent.  Few riparians think about the legal and liability implications for such items, however.

In Michigan, the common lake access structure on inland lakes is generally referred to as a “dock”, while the permanent structures on the Great Lakes tend to be referred to as “piers”.  Quite often, one can tell that a person is not from Michigan when they speak of their seasonal “pier” on an inland lake!

Under the Michigan common law, riparian property owners generally have the right to install a dock, as well as a boat hoist and swimming raft, on their bottomlands.  That is one of the benefits of riparian ownership.  See Thies v Howland, 424 Mich 282; 380 NW2d 463 (1985); Burt v Munger, 314 Mich 659; 23 NW2d 117 (1946); Hilt v Weber, 252 Mich 198; 233 NW 159 (1930); Pierce v Riley, 81 Mich App 39; 264 NW2d 110 (1978); Sewers v Hacklander, 219 Mich 143; 188 NW 547 (1922) and Hall v Alford, 114 Mich 165; 72 NW 137 (1897).  However, it is also true that a riparian must place such items on their own bottomlands.

With most inland lakes in Michigan, the bottomlands of a riparian property extend under the water to the center of the lake.  See Hall v Wantz, 336 Mich 112; 57 NW2d 462 (1953); Gregory v LaFaive, 172 Mich App 354; 431 NW2d 511 (1988) and West Michigan Dock & Market Corp v Landland Investment, 210 Mich App 505; 534 NW2d 212 (1995).  Unfortunately, it is frequently difficult to determine the angle at which riparian boundary lines under the water (and along the bottomlands) radiate to the center of an inland lake.  Those angles almost never match the angles of the side lot lines on dry land of the lot or parcel involved.  This uncertainty in the law can lead to disputes regarding the boundaries of bottomlands.  Nevertheless, if you are a riparian land owner, you must make sure that your dock, boat hoist and swim raft are all located on and over your own bottomlands.  It can constitute a trespass for any of those items to encroach on your neighbor’s lake bottomlands unless you have your neighbor’s permission.  See Hall v Wantz, 336 Mich 112; 57 NW2d 462 (1953).

Is there a limit on the length of a dock or how far out into the lake a swim raft can be anchored?  At the common law, there is no definitive limit from the shore per se.  However, such items cannot unduly interfere with navigability or the rights of other riparians to reasonably use their respective riparian properties.  See Thompson v Enz, 379 Mich 667; 154 NW2d 472 (1967); Three Lakes Assn v Kessler, 91 Mich App 371; 285 NW2d 300 (1979); Pierce v Riley, 81 Mich App 39; 264 NW2d 110 (1978); West Michigan Dock & Market Corp v Lakeland Investments, 210 Mich App 505; 534 NW2d 212 (1995) and Square Lake Hills Condo Assn v Bloomfield Twp, 437 Mich 310; 471 NW2d 321 (1991).

Pursuant to Michigan statute, a dock, boat hoist or swim raft cannot be a hazard to navigation.  See MCL 324.80163.  If it is, the Michigan Department of Natural Resources (“DNR”) can require the riparian landowner to move or even remove such an item.  And, if the property owner does not do so, the DNR might move or remove the item itself and bill the property owner for the cost.  See MCL 324.80163.

Some local municipalities (a city, village or township) do have ordinance provisions which regulate docks.  Those regulations can limit the length of a dock from shore, the width of a dock and the height of a dock, as well as ban permanent docks by requiring docks to be removed from the water during the off-season.  Some municipalities also require docks and shore stations to be located a certain distance away from the side lot lines at the waterfront.  A limited number of municipalities also regulate swim rafts and boat hoists by ordinance.

Permanent docks or piers (i.e., docks or piers that are left in the water year-round) require a special state permit.  Multi-family docks and piers are often regulated by municipal zoning ordinances and sometimes by stand-alone police power ordinances.  Multi-family docks or piers also require a marina permit from the State of Michigan.

Moored or anchored boats cannot drift over the bottomlands of one’s neighbor, even if the dock or anchor is located on the bottomlands of the owner of the boat.  Likewise, a boater out in the lake cannot anchor or moor on the bottomlands of another without that riparian’s permission, except for short periods of time as an incident of navigability, fishing or fowl hunting.  See Hall v Wantz, 336 Mich 112; 57 NW2d 462 (1953).

Given the potential for accidents on the waterfront, it very important for a riparian property owner to carry sufficient liability insurance regarding the riparian’s dock, boat hoist and swim raft.  Today, even a million dollars in liability insurance coverage is likely not enough.  Keeping one’s dock and raft in a good and safe condition, as well as not placing them too far out into the water, can help minimize the potential for accidents, thus lowering the liability risk.

As you can see, there is a lot more to docks, boat hoists and swim rafts than you thought!