MICHIGAN REAL PROPERTY REVIEW

STATE BAR OF MICHIGAN

Vol. 5, No. 5 October, 1978

Chairman: Allen E. Priestley Editor: George J. Siedel, III Graduate School of Business Administration The University of Michigan

CONTENTS

Zoning Litigation: Approaches and Freparation Techniques by Stephen A. Bromberg

Mechanic’s Lien Update ll O by Robert S. Bolton The Legislative Scene 2O by Joseph H. Hollander

Case Briefs 22 by Nicholas Batch

Chairman’s Report 26 by Allen E. Priestley

Section News Section Committees 3O

When I hear a man talk of unalterable law, the effect it produces upon me is to convince me that he is an unalterable fool.

Sidney Smith O October, 1978 - Page 2

ZONING LITIGATION: APPROACHES AND PREPARATION TECHNIQUES

Stephen A. Bromberg Bromberg, Robinson, Shapero & Cohn

The subject matter of zoning litigation is unusually broad. Inasmuch as "each zoning case must be determined upon its own facts and circumstances," SenefskY v Huntington Woods, 307 Mich 728, 737 (1943), there are, of necessity, as many approaches to the trial of zoning matters as there are cases. Accordingly, this article will be highly subjective and largely reflect the opinions and experiences of the author. Further, this article is not intended to be definitive, but rather to set forth certain ideas which, hopefully, will prove helpful. The perspective will be that of representation by the attorney of the individual property owner or developer in opposition to the municipality, but the concepts deriving therefrom should be of interest regardless of the party represented.

In approaching litigation, background factors must be reviewed carefully in order to adopt the proper approaches. These factors are procedural, political and legal.

The first examination should be the precise procedural context. Litigation may result from the refusal of a municipality to grant a building or use permit, its refusal to grant site plan approval, its refusal to grant rezoning or the rezoning of specific property over the protest of the property owner. Zoning litigation can also arise from the refusal of a Zoning Board of Appeals ("ZBA") to grant a variance or special exception, or from claims of specific ordinance violations, or from the presence of nuisances under ordinance provisions, or non-conforming uses, as well as many other circumstances. The remedies available in each of these circumstances will vary with the facts of the particular case, as will be detailed below.

The importance of the political context cannot be overemphasized. For example, in dealing with site plan matters it is important to remember that the Planning Commission, which may in the particular community be designated to deal therewith, is normally appointed by the municipal Council and that the Council (which may also deal therewith) consists of elected officials. When rezoning questions are present, these elected Council members will be involved. In dealing with appeals froul ZBAJ one must note that the members thereof are normally appointed by the Council. Therefore, in these circumstances one is always dealing with either publicly elected or appointed officials. They are, thus, responsive to political pressures, which are not normally a factor in other litigation. The presence of homeowners groups exercising whatever clout they might have therefore has direct bearing on the type of action taken. The question may well be asked why this political factor is important in litigation, since it appears to be of more importance in representa- tion of clients at the level of municipal action. However, if one is to understand the motivation of the municipality and its representatives and the parameters within which they are acting in the litigation, understanding of the political situation is vital. Thus, for example, since the City Attorney is normally appointed by the municipal Council or Board, he will be definitely attuned to their positions in relation to the litigation. As a result, if an attorney is attempting to have a mobile home project approved and a majority of the Council members were elected on a October, 1978 - Page

political platform in opposition to mobile home parks, no meaningful settlement negotiations with the City Attorney are likely. On the other hand, if it is determined that the issues involved in the litigation are not a major political football in the municipality, settlement negotiations may, in fact, be possible.

In handling these political problems, the attorney must have a public relations sense. Since many zoning suits are of intense public concern, they are often reflected in newspaper articles and television news programs. Thus, a determination must be made as to the manner in which the media are to be treated in the litigation. Our approach has generally been to avoid newspaper reporters and television cameramen to the extent possible, since we find that statements are often misquoted or taken out of context with the opposite effect of that originally intended. However, in this area, as in other zoning areas, the exception may prove the rule. Therefore, you may desire to marshal public support through carefully ~ritten statements submitted to reporters with the understanding that all of these statements are to be printed. In any event, care must be taken to avoid being "burned."

The legislative legal background involves three zoning enabling acts:

(i) The City-Village Zoning Act, MCLA 125.581 et seq.,

(2) The Township Rural Zoning Act, MCLA 125.271 et seq., and

(3) The County Rural Zoning Enablin~ Act, MCLA 125.201 et seg. The County and Township Act provisions "trackv’ each other in that you will find that many of the provisions in each of the acts are exactly the same and located in the same positions within each legislative framework. Although the City-Village Act is much shorter and does not "track" the other two acts, many of the most relevant provisions contain the same language as in the other two acts. Thus, in construing language in one of these acts it is important to examine the others to determine whether authorities are present which will aid in the construction process. It should be noted that the City-Village Act also contains special provisions, most particularly ~n relation to ZBAs and the processing of appeals therefrom. Legisla~ tion is pending at the time of writing of this article which should have the effect of clarifying a number of previously unclear areas under these acts.

The local ordinances are often vital in determination of zoning litigation. Zoning ordinances will, in many instances, have a number of interrelating provisions. Thus, it is most important to review the entire ordinance, determine the structure thereof and analyse all provisions which may affect the pending litigation. In many cases it will be found that different provisions in the same ordinance either qualify each other, or have apparently conflicting effects. Thus, good advantage can be taken of a complete perspective of the local ordinances involved.

The Michigan case law in the area of the validity of zoning ordinances and efforts to effect rezoning has been most interesting during the past twenty years. The Michigan Courts have taken, or appeared to have taken, successively conflicting positions. Thus, a superficial review is instructive.

Initially, Brae B~rn~ Inc... v Bloomfield Hills, B50 Mich 425, hB2 (1957), in a well-reasoned decision by Justice Smith, adopted the concept that, "the (zoning) ordinance comes to us clothed with every presumption of validity." Therefore, it was concluded that it was "the burden of the party attacking to prove affirmatively that the ordinance is an arbitrary and unreasonable restriction upon the owner’s use of his property." Brae Burn, supra, October, 1978 - Page 4

Beginning in 1971 the Michigan Court of Appeals developed the so-called "favored or preferred use" doctrine in Bristo~ v City of Woodhaven, 35 Mich App 205 (1971). This doctrine was to the effect that "where a proposed use has acquired a ’favored’ status (such as mobile home parks) and is appropriate for a given site, the presumed validity of a restrictive local ordinance fades and the burden shifts to the municipality to justify its exclusion." Bristow, supra, 212. Therefore, "it is now the municipality’s burden to present competent evidence to support exclusionary ordinances." Bristow, supra, 213. Succeeding Court of Appeals cases adopted and applied this approach. Simmons v Royal Oak, 38 Mich App 496 (1972) (applying the doctrine to multiple dwellings)°

However, in Kropf v Sterling Heights, 391 Mich 139 (1974), in which multiple dwelling use was approved in the Court of Appeals based upon the "favored use" approach, the Supreme Court~ in the majority opinion of Chief Justice Kavanagh, totally rejected Bristow and its progeny, overruled the entire favored use doctrine and reinstated the Brae Burn concepts. Thus, according to the Kropf majority, in the event that the zoning itself is "reasonable" it will be upheld and the burden of proof is on the party attacking the ordinance°

In Kropf Justice Levin wrote a well-known concurring opinion in which he adopted the position that while the legislative body of the municipality, in adopting the overall zoning ordinance for the entirety thereof, was exercising legislative powers, when that body dealt with individual property and decided matters concerning such property on individual grounds, these proceedings were quasi-Judicial and thus administrative and not legislative. From thms it was concluded that the essential question in these matters was changed "from whether the use permitted by present zoning is reasonable to whether the proposed use is reasonable." Kropf, supra, 171. Thus, again the burden of proof could shift to the municipality to sustain its position in circumstances in which a proposed use is reasonable.

The "Levin doctrine" was adopted in Sabo v Monroe Township, 394 Mich 531 (1975), Nickola v Grand Blanc Township, 394 Mich 589 (1975) and Smookler v Wheatfield Township, 394 Mich 574 (1975). Ho~,zever, in a lengthy majority opinion in Kirk v Tyrone Township, 398 Mich 429 (1976) Justice Williams has apparently settled the issue for the moment by rejecting the Levin doctrine and returning to the philosophy of Brae Burn and the Kroof majority. Thus, Justice Williams established two principles and four rules at pages 439 and 440 of Kirk, as follows:

"The principles and tests to use to determine whether the present zoning of plaintiffs’ property is valid was detailed in ~ropf.

"The important principles require that for an ordinance to be success- fully challenged plaintiffs prove:

"’[F]irst, that there is no reasonable Governmental interest being advanced by the present zoning classification itself *** or

"’[S]econdly, that an ordinance may be unreasonable because of the purely arbitrary, capricious and unfounded exclusion of other types of legitimate land use from the area in question.’ 391 Mich 139, 158. October, 1978 - Page 5

"The four rules for applying these principles were also outlined in Kropf. They are:

"i. ’"[T]he ordinance comes to us clothed with every presumption of validity."’ 391 Mich 139, 162, quoting from Brae Burn? Inc. v Bloomfield Hil~s, 350 Mich 425; 86 NW2d 166 (19’57).

"2. ’"[I]t is the burden of the party attacking to prove affirmatively that the ordinance is an arbitrary and unreasonable restriction upon the owner’s use of his property *** . It must appear that the clause attacked is an arbitrary fiat, a whimsical ipse dixit, and that there is no room for a legitimate difference of opinion concerning its reasonableness."’ 391 Mich 139, 162, quoting from Brae Bu~n~ Inc.

"3. ’Michigan has adopted the view that to sustain an attack on a zoning ordinance, an.aggrieved property owner must show that if the ordinance is enforced the consequent restrictions on his property preqlude its use for any purposes to which it is reasonably adapted.’ 391 Mich 139, 162-163.

"h. ’"This Court, however, is inclined to give considerable weight to the findings of the trial Judge in equity cases."’ 391 Mich 139, 163, quoting qhristine Buildin6 Co v City of Troy, 367 Mich 508, 518; ll6 NW2d 816 (1962)." (Emphasis added.)

Therefore, the burden is again on the party attacking the ordinance and the ordinance is presumed valid. Obviously, this limits the areas in which the homeowner or developer can expect success in such zoning litigation. However, success may still be available if proofs establish total exclusion of a particular use, if the zoning can be shown to be so confiscatory as to constitute a deprivation without due process (for example, through rendering the property worthless), or if constitutional rights such as those of the right of religion or the First Amendment right of free speech are affected. See the discussions in Archbishop v Orchard Lake, 333 Mich 389, 39h (1952), which may be argued to have been decided on more traditional grounds, and in the multiple opinions in Young v American .Mini Theatres~ Inc., h27 U.S. 50, h9 LEd2d 310 (1976).

In the area of appeals from ZBAs the important point to note is that the appeal is "on the record." That is, the Circuit Judge in reviewing the results of the proceedings before a ZBA is not permitted to take additional testimony or review facts not placed in evidence at the ZBA proceedings. Thus, Lorland Civic Association v DiMatteo, l0 Mich App 129 (1968) at page 136 states:

"In our opinion both the circuit judge and we review the order of the appeals board on the record made before the appeals board, and the parties should not have been permitted at the circuit court hearing to add to the record, either for the purpose of sustaining or defeating the appealed order."

In the writer’s opinion the tribunal best equipped to determine all of the pertinent facts in such a matter is therefore precluded from doing so. Accordingly, prudent counsel will make the broadest possible record at the ZBA proceedings, while keeping in mind that those bodies are normally not desirous of the extensive proceedings necessary to complete an entire factual picture and are composed of individuals who are often not trained in matters of legal evidence, etc. It is hoped that the pending legislation will correct this situation, although this is presently far from certain. October, 1978 - Page

Hessee Realty~ Inc. v Ann Arbor, 61 Mich App 319 (1975) reversed the determina- tion of the Council of the City of Ann Arbor and ordered approval of a site plan. At page 325 the Court stated:

"Thus, once the requirements of the ’statute, ordinance and regulation’ have been satisfied, the Commission must approve the site plan. We find the same limitations apply to the City Council."

Thus, although this case deals with the language of the Ann Arbor ordinance, it is apparently authority for the proposition that site plans must be approved by a municipality where all ordinance and regulation requirements are satisfied.

Although it is obviously necessary to exhaust administrative remedies prior to appeals from administrative bodies such as the ZBA, it has been the law in Michigan for some time that there is no need to exhaust administrative remedies when a challenge to the constitutionality of a zoning ordinance is involved. Thus, in Long v Highland Park, 329 Mich 146 (1950) it was held that administrative remedies on a municipal level do not need to be exhausted, since the municipal authorities did not have the power to declare the ordinance unconstitutional and void as applied to the property of an individual, and since they could not grant the relief sought by such individual, i.e. the holding of the unconstitutionality of the ordinance in such circumstances. See also London v Detroii~, 354 Mich 571 (1958). As indicated above, very careful analysis must be made before choosing the remedies to be sought in a zoning matter. Differing scopes of appeal and burdens are involved under differing remedies. For example, although Mandamus might normally seem the best remedy to apply in a situation in which a permit is being sought (since it is assumed that there is a duty on the part of the municipal official to issue the permit and a right on the part of the individual to receive the same), it must be clear that there is no discretion on the part of the municipal official, since the presence of such discretion could defeat the right to Mandamus. See Hessee, supra, 322. Similarly, different appellate scope is present on a writ of superintending control directed to a municipality. The most common remedy is that of injunction, since it is through use of these equity powers of the Court that varying types of relief has been sought to a myriad of problems. Declaratory judgment may also be available in certain circumstances. Obviously, the very best approach in preparation of pleadings is to pray for relief using all conceivable remedies, in order that the utmost flexibility will be present in the litigation process.

Normally, there is no choice as to the forum in zoning litigation, since the jurisdiction is with the Circuit Court of the county in which the property is located. However, the writer would urge that strenuous efforts be made to change venue or to obtain a visiting judge as part of a process of attempting to obtain the most independent judicial determination, in those circumstances in which the matter is in a smaller community and the issues involved in the litigation are subject to intense publicity and political pressures through well-organized home- owners groups. That is not to say that local judges in less populous counties are less independent or conscientious, but rather to indicate that they are human and have to be affected by large public outcries from their constituents, particularly in those communities where they know or may have dealt with them in the political process. In retrospect, the writer believes that for these reasons a change of venue or use of visiting Judge in Hessee or in Dwyer v Ann Arbor, 79 Mich App 113 (1977), in which these factors were present, might have brought different conclusions than those reached by the two local trial judges therein, both of whom were reversed on appeal. October, 1978 - Page 7

In choosing the parties to be brought in as defendants in a zoning suit, it is absolutely easential to bring in the particular administrative officer in charge of the matters in issue, so that the relief granted in the litigation may be directed by Court Order to the particular officer empowered to resolve the problem in question. Thus, if building permits are involved the official in charge of issuance of these permits should be made a party defendant. Similarly, if a municipal Council or Board has acted in a manner believed unconstitutional or if it is feared that it may act to amend a zoning ordinance during the pendency of litigation, all of the members of the Council or Board should be joined individually as parties so that the possibility of injunction from such activity may be available. Similarly, other officials involved in plan approvals, etc., such as Plan Commission members, should be Joined when the issues involve them directly.

With reference to homeowners groups the writer has a somewhat ambivalent feeling. Since these groups are amorphous and contain many individuals with differ- ing goals, if the particular group in question is not well-organized or funded, it would be best to attempt to keep it out of the litigation so that settlement possibilities therein on the basis of direct negotiation with representatives of the municipality are enhanced. However, if a homeowner group is particularly militant, well-funded and obviously intends to participate in some form of litigation, it would be best to bring them in initially in some manner and to attempt to try all of the issues in one matter, and thus to avoid the e.~@erience in Hessee and Dwyerin which two separate trials were held involving the same homeowners group and the same property.

In preparation of pleadings particular care is required in zoning litigation since, because of the mass of detail normally involved therein, there tends to be more reference made to the pleadings during the course of the litigation than in other situations.

Initial motion or show cause hearings can often either determine major issues in zoning litigation, or cause expedited settlement activities. Thus, if a temporary restraining order is sought against a municipal official during the pendency of a cause in relation to a purported ordinance violation, the same issues may be involved as in the ultimate permanent injunction relief sought therein. Therefore, the initial show cause or motion hearing may lead the Court to a result which would affect its ultimate determination on the underlying issue. Care should be taken in snch circumstances to weigh the effects of such initial hearings. In certain circumstances they may serve as a catalyst to settlement. In others, because of the animosities deriving from hearings in open Court, settlement activities may be inhibited. Inasmuch as the property owner or developer is normally interested in the fastest possible results from the litigation, these facets as well as the effects of obtaining preliminary relief in such initial hearings should be carefully examined. As indicated above, municipalities have, in certain matters, attempted to pass legislation during the pendency thereof to obtain the desired result from their standpoint. Thus see Keating International Corp v Orion Township, 395 Mich 539, 5~5 (1975), in which such efforts were made while the Trial Court proceedings were pending, and Hessee, in which such an ordinance was passed subsequent to appeal. Although philosophically there might appear to be some problem relative to a Court enjoining the legislative process of a municipality, it seems well established in Michigan "that such injunctions have been permitted in certain circumstances." See Daraban v Redford Township., 383 Mich ~97, 501 (1970) and the cases cited therein. October, 1978 - Page 8

In approaching discovery, the single most fruitful area will often tttrn out to be the Planning Department of the municipality. If rezoning has been involved, the Planning Director will normally have given recommendations to the Council or Board relative thereto. If these recommendations were in favor of rezoning and the Council or Board rejected the same, a witness from the camp of the municipality is available through subpoena for testimony in support of the rezoning rejected by the municipality. On the other hand, if the recommendations of the Planning Director were against the rezoning, his report will normally set forth many of the arguments which will be faced in the litigation. In addition, Planning Department records often include maps and extensive additional data concerning developments in the area of the property in question over a number of years and are thus extremely helpful in trial preparation.

With reference to traffic matters, revi~ should be undertaken of past problems and proposed changes. Thus, if a high rise apartment is projected adjacent to a two lane highway, it would appear that substantial traffic effect may ensue. How- ever, if expansion of such highway is projected through County Road Commission or municipal action within the immediate future, arguments relating to traffic problems may be effectively blunted. Traffic counts are available from those departments of cities having traffic directors and from County Road Commissions. This can be important data in certain zoning cases, as evidenced by White v Township of South- fiel~, 347 Mich 548 (1956), a reading of which appears to indicate that the extensive increase of traffic on Telegraph Road was the decisive factor in that decision.

In some circumstances Building Department records can be helpful, although experience has indicated that these records are normally of less interest than those of the Planning Department. The City of Southfield has passed an ordinance requiring a "community impact statement" or environmental study in connection with certain developments. Although this is apparently the first such ordinance in Michigan, it is anticipated that others will follow. Therefore, in those matters involving environmental questions the records of the department handling such review should be carefully examined, which in the case of Southfield is the Department of Parks and Recreation.

It should be emphasized that transcripts of most Council, Board or Plan Commission proceedings are not the transcripts with which attorneys are generally familiar. Usually these transcripts consist of summaries made by a secretary and not of verbatim statements. In certain circ~nstances, it could be vital to have the entire transcript available. Therefore, in preliminary proceedings at the municipal level it may be advisable to bring in a court reporter to take a complete transcript. In Hessee a television tape was made of the Council proceedings. Since the state- ments made by the Councilmen during these proceedings indicated clearly that the were rejecting the proposed site plan without stating appropriate reasons for th~ same, these statements became decisive on the Court of Appeals level, and one such statement is even quoted in the decision. Hessee, supra, 326.

Adequate preparation requires actual visits to the premises to see the circumstances, developments in the area, potential changes, etc. The taking of photographs is essential not only for recall purposes, but also for possible use in the litigation. Checks of municipal records, Council minutes, Register of Deeds record and the like are important to determine the history of the area of a property, and the activities which have occurred in connection therewith. Examination of non- conforming uses throughout an area and analysis thereof on a chart could be important where this is a decisive factor. In suits in which efforts are made through claims of reciprocal negative easements or building and use restrictions to prevent develop- ment, examination of these restrictions, of underlying purchase agreements, October, 1978 - Page 9

advertising occurring in conjunction with sales in a subdivision, comparable data from adjacent subdivisions and the like can be vital in some circumstances. See Dwyer.

The Environmental Protection Act ("EPA") has now opened the possibility of litigation by homeowners groups on the basis of claims of degradation of water, soils, air, etc. Where such environmental damage is actually present or threatened, such use of the EPA is appropriate. However, in those circumstances in which home- owners groups are merely taking advantage of the very broad provisions of the EPA permitting "any person" to commence such litigation (MCLA 691.1202EII), there appears to be a need of counterbalancing remedies, such as legislation providing for damages in those circumstances in which claims of EPA violations are without basis and are made only to delay pending developments, at great expense to property owners or developers. In trying EPA matters the obtaining of expert witnesses is vital. There are a great number of independent private organizations available to supply such experts. Obviously, they can aid the attorney in locating studies of a locality which have already been completed and which may be vital to the pending litigation. See Dwyer.

Where claims of deprivation of property without due process are made, proofs of worthlessness of the property for the use zoned must be presented, through testimony of experienced real estate brokers, expert appraisers and bankers who can testify relative to the unavailability of mortgage loans.

Because of the necessity to place the problems in zoning litigation in a concrete form, the use of maps and area plans during the trial is absolutely essential. Often, these may be obtained from municipal planning departments and placed in the record through subpoenas without the necessity of substantial expenditures to obtain the same. However, if not available, it might be best to prepare such maps and plans with the help of an expert witness who can then testify with reference thereto. Certainly, they dramatize to the Trial Court the facts involved in a manner which ordinary testimony cannot.

Photographs taken by counsel (if admitted by stipulation) or by photographers hired by counsel should be considered for use in zoning litigation. Aerial photography is extremely effective. There are companies which make yearly survey aerial photographs in metropolitan areas and which can, thus, supply from the aerial perspective a record of changes over a number of years in a particular area. Further, dramatic evidence can be obtained from satellite analyses by companies dealing in such materials.

Expert witnesses should be sources of information to attorneys in initial contact with such experts. However, as in other cases, attorneys must be prepared to limit the experts to the particular issues and to prepare them for cross-examina- tion so that they will be clear as to the ramifications involved. If care is not taken, the expert witness often will cut down on his effectiveness by attempting to use the witness stand as a forum to spread the gospel as to his own particular views. Clearly, this should be avoided.

Since massive amounts of detail are involved in zoning litigation, it is essential to establish charts of categories of proofs and to maintain awareness on the part of the Trial Court of such categories at all times during trial proceedings. This will often help in meeting relevancy and other objections. Outlines of the proposed testimony of each witness are very helpful in such regard. This will also help to avoid the tendency to repetitive over-proving of cases which will often lose the benefits of good prior testimony. October, 1978 - Page i0

So-called "contract zoning" is genera!ly held to be against public policy. Crawford, Michian Planning and Zoning, Second Edition, ICLE, Section 2.11. However, although such zoning is not available during municipal proceedings, the same effect can be obtained through consent judgments entered in pending litigation. Similarly, in dealing with municipalities, although the Open Meetings Act would appear to indicate that municipal Boards or Councils can only review pending litigation under the glare of publicity and in the presence of noisy homeowner groups, attorneys should be aware of the availability of MCLA 15.268(e) as an exception which permits private determinations by Councils or Boards relative to litigation matters.

As is evident from the foregoing, zoning litigation is complex and involves the interrelationship of many disciplines. This article is presented with the hope that it will be of benefit in approaching this fascinating area. October, 1978 - Page ii

MECHANIC’S LIEN UPDATE By

Robert S. Bolton Butzel, Fruhauf, Keidan, Simon, Myers & Graham

Two yaars ago if you were counsel for real estate owners or lenders, you could be reasonably comfortable that a contractor or subcontractor had small chance of a valid mechanic’s lien under Michigan law. But, the world turns, and progress is made, and the minds of Judges, depending on one’s point of view, become enlightened or clouded. Thus, without legislative amendment, the Michigan Mechanic’s Lien Law (M.C.L.A. 570.1 et seq.) has become a new law, with new meanings and broader scope, providing relief for those whom the act has always purported to benefit; it has also been declared to be constitutional. The statute has not, however, become any easier to interpret - Section 1 was and remains "difficult and tedious" and it is impossible to predict what new surprises may be found in its four and one-half pages and one sentence (not counting the sentences included in the Notice of Intent). A new statute, embodying some of the current Judicial interpretation and providing reasonable certainty of meaning remains necessary.

The new meanings of the Lien Law have been provided by several decisions, two by the Supreme Court, three by the Court of Appeals and one by a three-Judge panel of the Federal District Court for the Eastern District of Michigan, Southern Division. The Appeals Court decisions may themselves be the subject of further Supreme Court action. Arguably, however, these decisions follow the recent Supreme Court pronouncements and should thus be affirmed.

Spartan Asphalt Paving Company v Grand Ledge Mobile Home Park, 400 Mich 184, (June, 1977), reversing 71 Mich App 177, 247 ~-g2d 5~9 (1976), and 70 Mic~ App 298, 2&5 NWg~, 795 (1976) Narrowly, the holding of S~artan is that asphalt paving is lienable under the Act. In so holding, the Court overruled, in part, Bezold v Beach Development Co., 259 Mich 693 (1932), which held that the mechanic’s lien statute did not provide a lien for parking lots and grounds. More broadly, the holding of Spartan is that a lien is accorded to every person who performs labor or furnishes materials:

"For our purposes here, the statute appears to give a ’lien’ on a ’house tor~ building’ to subcontractors who may ’perform any labor or furnish materials * * * in carrying forward or completing any * * * contract’ whose object is to ’improve * * * any lot or parcel of land’" 400 Mich 184 at 188.

While it may be argued that the Court held only "subcontractors" are included within the broad sweep of those entitled to liens for improving land, the language at the beginning of Section 1 of the Lien Law coupled with the S~artan case should leave no doubt that persons dealing directly with owners are likewise covered if they improve land pursuant to a contract.

The holding that all who improve land pursuant to a contract are accorded lien protection has the f~rther effect of rendering most of the language of Section 1 useless as surplusage. It also reverses an implied holding of Bezold and the express holding of Healy v Toles, 266 Mich 584 (1934) that the recitation in Section 1 of October, 1978 - Page 12 various types of structures precludes trades which do not directly work on such structures from a lien because of the rule of ejusdem g.eneris.

As a grammatical matter, it is easy to quarrel with the Court’s holding in Spartan. Section 1 reads in part

See. 1. Every person who shall, . . . build, alter, improve, repair, erect, ornament or put in, survey or plat any lot or parcel of land, or portion thereof, or engineer or design any sewers, water lines, roads, streets, highways, sidewalks, or prepare and furnish pursuant to such contract to such owner, part owner or lessee of any interest in real estate any survey, plat, plat of survey or design or engineering plan, or plans, for the improvement of any lot or parcel of land not exceeding one-quarter section of land, or who shall furnish any labor or materials in or for building, altering, improving, repairing, erecting, ornamenting or putting in any house, swimming pool, building, machinery, wharf or structure, . . . shall have a lien therefor . .

The word "improve" does not refer to the immediately succeeding words "any lot or parcel of land," but only to the later words "house, swimming pool, building, machinery, wharf or structure."

Grammatical arguments aside, ample support for the Court’s decision in Spartan is found in the argument that a parking lot improves a building every bit as much as heating equipment, windows and bricks. To state the obvious, without parking lots, many commercial structures would be useless. The answer to a claim that this is too broad a meaning to be ascribed to the word "improve" can be found by looking, as the Spartan Court did, to Section 27 of the Act which mandates liberal construc- tion.

The recognition of the ful! impact of Section 27 also required the S.partan Court to impliedly reverse the long line of cases requiring strict construction "until the lien attaches . . , e.g___~.,,, Smalley v Northwestern Terra-Cott. a Co, ll3 Mich 141 (1897).1 The mandate of Spartan is clear. The lien law is to be liberally construed in all aspects to achieve the legislative purpose. Less clear and awaiting further decision is what that mandate means. Does liberal construction permit a lien claimant to ignore the time limits respecting Notice of Intent and filing of lien? Does liberal construction permit warranty work or minor "clean-up" to expand the contract to the date such work is done, thus enlarging the time in which a lien may be filed?

iThe Supreme Court ruling in Spartan was anticipated in part by the Court of Appeals in deciding one of the issues. The issue involved was whether a copy of the Statement of Lien (570.6) could be posted within ten days of filing if the owner could not be found in the county. The Court decided such posting was substantial compliance and was sufficient. The Court of Appeals noted Section 27 had long been ignored by the courts which held strict construction up to the attachment of the lien was required and disregarded Section 27. While Spartan actually interprets the ’substantial compliance’ language of Section 27 rather than "liberal construc- tion," the courts as far as we can tell, have made no distinction. October, 1978 - Page 13

Burton Drywall v Kaufman, 402 Mich 366 (1978), reversing 69 Mich App 85, ~44 NW~d 367 (1976)

The Supreme Court reversal of the Court of Appeals’ holding that there is no direct dealing exception in the lien statute and anyone claiming its benefits must serve a notice of intent has brought a great sigh of relief to the construction industry. It is also probable that this decision was greeted with much further teeth grinding by title companies and lenders’ attorneys who felt some otherwise lost causes might have been saved by the Court of Appeals decision.

From 1933 until 1976, it was understood that anyone dealing direct with an owner did not have to serve a notice of intent to obtain a lien. Mielis v Everts, 26~ Mich 363 (1933). The Court of Appeals decided the Mielis court was in error and the Supreme Court would decide Mielis differently if it had the opportunity. Given that opportunity, the Supreme Court decided Mielis the same way it had originally, only at substantially more length.

In Mi~l.is, in reference to the direct de~ling exception, the Court said: It is first claimed that the lien of Albert Mielis is invalid because a notice of intention to claim a lien was not served upon the owners. It was not necessary. The lien claimants were deal- ingwith the part-owner, not with a contractor. 3 Comp. Laws 1929, §13101; Smalley v. Ashland Brown--Stone C~&, 114 Mich. 104. (26& Mich 363

In Burton, the court said the same thing.

As a matter of logic and statutory intent, Burton was correctly decided if the notice of intent is to serve the purpose of a~vising the owner of the existence of a person and his presence on the Job. A contract between such owner and person serves that purpose.

One taking issue with Burton can say that the clear language of Section I was ignored:

¯ provided, that an_~person . . . shall within 90 days after furnishing the first . . . serve on the owner . . . (the notice of intent).

However, a careful reading of the Burton decision finds the Court supported by authority as well as logic. As observed by the Court in the Burton decision, the practicing bar was aware of and relied upon a direct dealing exception prior to Mielis. In Note 22, the Court cites two Articles on the 1929 Mechanic’s Lien Law, written as guides to perfecting a lien. Both Articles state clearly no notice of intent is required in dealing direct with the owner.

The problem the Court faced in Burton is the problem all face in trying to give meaning to 9ection 1. The Court may be criticized in deciding "any person" means persons who deal with contractors and not owners. There is, however, statutory support for the position of the Court. The proviso, while it seemingly encompasses ’any person’ later refers to "furnishing . . . material . . . ~or~ labor . . for any contractor." Again, as in Spartan, it can be strongly argued that the words "for ~ny contractor" deal only with rented or leased equipment. But, the remaining language of the proviso, following the statutory form of notice clearly shows that an owner’s liability to such contractors for payments made to the general contractor October, 1978- Page 14

shall be limited to payments after the notice is received. Thus despite earlier ambiguous language the intent of the notice provision is that the owner should know who the subcontractors are. Obviously, he knows the contractor.

It is not fair, then, to say the Burton Court ignored the clear language of the statute. It only read it in conjunction with the language providing for the notice which, if it does not refer beyond doubt only to subcontractors, certainly refers only to subcontractors by a preponderance of the evidence.

Each reader may struggle with the Burton decision in its entirety. One should conclude from the struggle that a new statute is necessary.

Mortgage Growth Investors v Clow Corporation, et al, U.S.D.C., E.D. Mich, S.D. (No. 6-70676), Opinion of the Court (1977)

Williams & Works, Incv Springfield Corporation, et al, 81 Mich App 355 (1978)

Mortgage Growth and Williams & Works coupled with earlier decisions of the United States Supreme Court should lay to rest the constitutional attack on the present lien statute.

In Mortgage Growth, the constitutional attack was dismissed by a three-judge panel in reliance upon a summary affirmance and dismissal by the United States Supreme Court in Spielman-Fond, Inc~ et al v Hanson’s, Inc, et al, 379 F. Supp. 997 (D. Ariz 1973), aff~d per curiam, 417 U.S. 90~ (197~) and Connolly Development, Inc v Superior Court of Merced County, 17 Cal 3d 803, 533 P2d 637, 132 Cal Rptr 477 (1976), appeal dismissed, 429 U.S. 1056, 97 S.Ct. 778~ 50 LEd2d 773 (1977) respectively.

The District Court concluded:

We have examined the Arizona and California Mechanic’s Lien Acts and compared them to the Michigan statute. We have also examined the Jurisdictional statements in the Spielman-Fond and Connpl~z Dev..~lopment appeals and compared the issues presented in them with the issues presented in this case. On the basis of these careful comparisons we conclude that the issues raised in this case were presented to the United States Supreme Court and were found by it to be without substance. Therefore, we are bound to uphold the constitutionality of the Michigan Mechanic’s Lien Act.

The Arizona statute upheld in Spielman-Fond is almost identical to the Michigan statute. The only differences are that the Arizona statute provides a six (6) month period in which the lien must be enforced or expire while the Michigan statute allows one year~ and that a bond of one and one-half times the claimed amount is required in Arizona versus twice the amount claimed in Michigan. These differences are of minimal consequence in terms of due process and cannot serve to materially distinguish the statutes. The three-judge court in Spielman-Fond concluded that:

’The filing of a mechanic’s and materialman’s lien does not amount to a taking of a October, 1978 - Page 15

significant pr operty interest, and that, accordingly, A RS §33-981, et__~, seq. are not violative of due process of law under the Fourteenth Amendment for failing to provide notic~ and hearing prior to the filing of the llien. 379 F. Supp. at 999.’

The California statutory scheme upheld in Connoll~ Develo~- mentmay be more onerou~ than that set forth in the Michigan statute. The California statutory scheme provides that if a supplier of labor or maSerial serves a bonded stop notice on the construction proJec$ lender, the lender must withhold sufficient money to pay!~the stop notice claimant. Other than this there are only two minor differences: the time for giving notice that labor and materials are being provided is twenty (20) days in ~alifornia and ninety (90) days in Michigan; the Callforni~ lien expires unless foreclosed within ninety (90) daysi, while this period is one (1) year in Michigan. ,

The California SupSeme Court went to the merits of the case, presumably to det!ermine if the California scheme passed muster under th~ state constitution. The majority stated: ~

’In summary, we conclude that the recordation~ of a mechanic’s llen, or filing of a stop notice, inflicts upon theiowner only a minimal deprivation of property; . . "

Opinion of the Court, ~p. ~-5 (1977)

In Williams & Works the Cow ~t of Appeals found the Michigan Act to be constitu- tional largely upon the strength of the per curiam affirmance by the Supreme Court in Spielman. In construing Spie ~man, the Court concluded either that filing a mechanic’s lien did not constitu tea significant taking or if elements of taking were present there were due proc ess safeguards. In either event the Michigan statute was found to fall within the ambit of Spielman.

Based upon the precedent of Spielman, it is hard to fault the conclusions reached in Mortgage Growth and W~lliams & Works. The Michigan statute is similar to the Arizona statute. A lien nay be a taking in an abstract sense, but in reality it is a threat of taking which nst be tested in Court. To argue that the one year period between filing and the n~cessity of bringing suit deprives an owner of an effective method to have the issue resolved is to ignore the three to four years spent in Court in normal litigation, a period which has often exhausted claimants with valid liens and forced acceptance of cheap settlement.

Sturgis Savings and L@an Ass’n v Italian Village, Inc., et al, 81 Mic~ .Ap~ 577 (1978~, and Williams & Works, supra.

In addition to dealing wit~ the constitutional question, Williams & Works dealt with the effect of certain Waiver of Lien forms as did Sturgis~ ~a~s--~rks also decided the issue of "commencement" under M.C.L.A. 570.9. Bo-~K~e~ & October, 1978 - Page 16

Works and Stur6is courts concluded that the ’white,’ "full waivers" were not necessarily so. Williams & Works dealt with ~ Burton Abstract and Title Company full waiver form which provides in part

FOR A VALUABLE CONSIDERATION, paid to the undersigned, the receipt whereof is hereby confessed and acknowledged, the undersigned hereby waive, release and relinquish any and all claims or right of lien which the undersigned now have or may have hereafter upon the premises know~ and described as . . .

Several subcontractors each executed several of the forms, one waiver each time a partial payment was made. Parol evidence was admitted by the trial court which then found all parties involved understood that each waiver was only partial and for work previously done - not for future work.

The Appeals Court found the waiver language in Williams & Works to be ambiguous and that parol was therefore properly admitted. In finding the ambiguity, the Court reasoned as follows:

At the time at which each claimant signed waivers, it could be said that the claimant already had a right of lien for the work done, or it could be said the lien claimant had no right to a lien until he thereafter complied with the procedural requirements of the act. Under the former view, the right of lien which the claimant ’may have hereafter’ would refer to a lien for work subsequently done, whereas under the latter view, it would refer to a lien for work already done but for which the procedural requirements had not been met. (81 Mich App 355 at 362, n.l.)

The claimed ambiguity then does not arise fros~ the language of the waiver but from the theoretical conclusion as to the time the right of lien arises. It appears unlikely that any prospective lien claimant in executing a waiver would have in mind this theoretical question. Nor has the bar had any difficulty in the past in interpreting the ’white’ full waiver form as just that.

The ambiguity in the context of the Williams & Works case is not in the language of the waiver but in the practice of obtaining a waiver at every draw. The parties understood the nature of the waiver to be partial. Whether this under- standing renders the form ambiguous is questionable. Moreover, the language of the waiver is not only a waiver of a right of lien, but also of "any and all claims . of lien." The language itself is not ambiguous but the context in which it was used may be.

The ambiguity found in Sturgis appeared in the following language:

The undersigned hereby waive * * * any and all claims or right of lien which the undersigned now have or may have hereafter * * * for labor rendered, material supplied. (81 Mich App 577 at 580.)

The Court had little difficulty in finding that the language referred to past work only.

If the document had made a clear reference to work to be performed in the future, there would be no controversy. See Pittsburgh Plate Glass Co v Art Centre Apartments, 253 Mich 501; 235 NW 23~ (1931). In that case, October, 1978 - Page 17

the materialman executed a waiver knowing it had been changed specifically to include future work. In this case, however, the waiver document’s only reference to the future concerns rights which may later arise from the work performed. It should be noted that ’labor rendered, material supplied’ was written in the past tense, and so the waiver should be read wlth this in mind. This interpretation does not make the words meaningless since the contractor could be waiving lien rights on future installment payments for work already completed¯ In Sa6inaw Lumber Co., ~, a waiver document was held to cover only work already performed, when the reference to rights which may later accrue was crossed out. In both the above cases, the expression of intention as to future work was clear while in this case it was not as clear. Ambiguous terms, especially in a printed form contract, are to be strictly construed against the preparer, Was~t~na~ %sphalt C~o v State of Michigan, ~2 Mich App 132; 201 NW2d 277 (1972), Keller v Paulos Land Co, 381 Mich 355; 161 NW2d 569 (1968). Since some ambiguity did exist in the contract, the trial court was not in error in allowing parol evidence on the parties’ intentions.

From analyzing the testimony at trial, the Judge found as fact that the defendant only intended a partial waiver for the work covered by his $5,000 bid and bill¯ His bill was expressly limited to work done to date. Also the court found that the plaintiff was aware of additional work done by the defendant at the restaurant that was not covered by his original bid. (81 Mich App 577 at 580-581.)

If one wants a full waiver the safest approach is to pay in full and get the waiver at the end of the Job. Barring that unlikely occurrence, the waiver language sanctioned in Pittsburgh Plate Glass Co v Art Centre Apartments, 253 Mich 501 (1931) appears to be a full, unambiguous waiver:

¯ . . any and all lien or claim or right of lien * * * on account of labor or materials, or both, furnished or which may be fUrnished by the undersigned to or on account of, or for said buildings or premises; and hereby authorize said owner * * * to plead this waiver and release in bar of any suit or suits brought by the undersigned * * * to establish a lien upon said premises * * * or to charge the same with any lien for labor and material done, performed or furnished or delivered * * * heretofore or at any time hereafter. (253 Mich 501 at 5o6.)

Sturgis also contains an interesting comment on attorneys’ fees:

In this case, defendant asks for $5,500 based on 121 hours of time expended in collecting a $4,500 claim. One of the reasons the trial Judge awarded only $850 was that he felt the attorney was unreasonable in working that many hours and charging more than was sought to be recovered¯ The trial court also considered the complexity and difficulty of the issues involved in determining a reasonable allowance. It was not required to accept the attorney’s claim of what is reasonable based solely on the number of hours spent. The trial court did not abuse its discretion in determining the amount of reasonable attorney’s fees. (81 Mich App 577 at 584.) October, 1978 - Page 18

An attorney completely familiar with mechanic’s liens and the Michigan cases might have discovered the ambiguity in the waiver form with less than i00 hours. It is also more than likely that appeal has doubled the time involved, but resulted in no further award of fees. In terms of the total dollars involved $850 may not be unreasonable. However, a litigant with $5,000 involved may find it difficult to press a lien claim when the attorney knows his fees will not result in a recapture of overhead in the case.

Finally, Williams & Works offers the first appellate view as to whether engineering sources are commencement of work for the purpose of priority under 570.9. The decision is straight forward and follows clear statutory language.

It is next argued that the mortgages held by Kelly Mortgage and Investment Company have priority over the mechanic’s liens held by appellees. MCLA 570.9; MSA 26.289 provides that mechanic’s liens have priority over all encumbrances recorded subsequent to the ’commencement’ of building. Appellants argue that ’commencement’ means actual construction, and actual construction did not start until after Kelly Mortgage and City National Bank had recorded their mortgages. We cannot accept appellants’ interpretation. Included within the act are engineering services. MCLA 570.1; MSA 26.281. Unless ’commencement’ means when engineering services are first performed, engineering firms will not be protected and receive all of the benefits of the act. The act must be liberally construed to carry out its intended purpose of benefiting subcontractors. MCLA 570.27; MSA 26.307; SDartan Asphalt Paving Co v Grand Ledge Mobile Home Park, 400 Mich at 188; 253 NW2d at 6h9. See Bankers Trust Co v E1 Paso Pre-Cast Co, Col, ; 560 P2d-~-457, 466-461 (1977). Williams & Works, Inc. commenced work prior to the recording of the mortgages. Appellees’ liens are therefore entitled to priority over the mortgages. MCLA 570.9; MSA 26.289; see Kay v Towsley, 113 Mich 281, 283; 71 NW 490, 491 (1897). (81 Mich App 355 at 362-363.)

Summary

The new decisions do not make any substantial change in the steps necessary to perfect a lien. They only make it clear that those who substantially comply with the provisions of the Act will not be deprived of a lien.

In order to perfect a lien the following steps remain necessary:

If you are a subcontractor or materialman, serve a Notice of Intent on the owner within 90 days of the first day of work. Service may be by certified mail or personally. Proof of Service must be retained.

2. If you are a contractor, prepare and use proper sworn statements when payments are due.

A statement of account and lien must be recorded within 90 days after the last day of work. The Notice of Intent and Proof of Service must be attached to the Statement. Subcontractors and Suppliers must serve the owner within i0 days after recording with a copy of the Statement, unless they are not in the county where the property is located in which case the Statement can be posted within 15 days after recording. October, 1978 - Page 19

Proof of Service of the Statement must be recorded prior to suit.

5. Suit must be commenced within one year of recording and lis pendens filed.

These new decisions while easing the path to a lien, do not solve all the problems. There is still no easy way for a potential lien claimant to obtain the name and address of the owner and the legal description of the property - a problem more acute in rural areas. Neither owners or lenders are assured of knowing the identity of the potential lien claimants until 90 days after a project is complete. The lien statute, particularly Section i, remains a legislative abomination and its procedures are cumbersome and uncertain; its interpretation more than most statutes remains subject to attorneys’ imagination and changing Judicial temperament.

A new law is still a good idea.

For more than a year, several separate interest groups have worked long and hard to draft a new lien statute. The starting point was Senate Bill 17h which was reported on last year. The proposed statute, which is nearly complete, represents a substantial modification of SB 17h and appears to have backing from contractors, subcontractors and lenders while more amendments will probably be made, there is substantial agreement on a bill.

The highlights of the new proposal are:

A requirement that all persons contracting for improvements on real property record and make available to all subcontractors a Notice of Commencement which describes the project and designates a person to receive notices of lien.

A Notice of Furnishing to be given by subcontractors to owners or their designees within l0 days of commencing work. The owner is protected from liens for work done and for which payment is made if no notice is served. However, liens for work done after the notice is given and for which payment has not been made are preserved.

3. A priorities provision permitting mortgage priority for disburse- ments made prior to physical improvement and thereafter for mandatory disbursements.

A section spelling out the form of waivers and the right to rely thereon.

An extensive provision on foreclosure taken from the Law Revision Commission Bill. On motion, a court may appoint a receiver to complete a project and sell free of liens, which shall be transferred to the proceeds of sale.

It is hoped that within a few months the revised act will be ready for submis- sion to the Legislature and review by the entire Section. October, 1978 - Page 20

THE LEGISLATIVE SCENE

Committee on Legislation Joseph H. Hollander, Chairman

During the brief period between the end of the Legislature’s summer recess and the recess before the November elections, the pace of law-making activity has risen significantly.

The following bills became law since the last issue of the Review. House Bill 4300 which permits the establishment of commercial redevelopment districts in local governmental units was signed into law on June 20 as Public Act No. 255. House Bill 4B10 which amends the procedures by which private property may be taken for drainage districts was approved on June ~ as Public Act No. 188.

House Bill 4570 which prescribes and defines the classification of real and personal property for assessment purposes became Public Act No. 381 on July 27.

Finally, on the Senate side, Senate Bill 634 which changes the procedures for vacating, correcting or revising a plat was approved by the Governor on July 22 as Public Act No. 367.

Action on Previously Reported Bills

H.B. 4300: See comments above.

H.B. 4310: See comments above.

H.B. 4475: 9/25/78 - General Orders (second reading) with amendments.

H.B. 4570: See comments above.

H.B. 5141: 9/20/78 - General orders with amendments.

H.B. 6182: 6/9/78 - Third reading - passed; 9/5/78 - Committee on Towns and Counties.

S.B. 79: 6/7/78 - General orders with amendment; 6/16/78 - Third reading with amendment; 6/20/78 - Passed - Co~nittee on Taxation.

S.B. I01: 6/19/78 - Committee on Appropriations.

SoB. 610: 9/21/78 - Amended - passed; 9/27/78 - House amendments concurred in as amended; 9/27/78 - laid over under the rules.

See comments above.

9/13/78 - Committee on Corporations and Finance; 9/20/78 - Second reading with amendments.

S.B. 1271: 9/14/78 - Amended and passed; 9/18/78 - Committee on Taxation. October, 1978 - Page 21

S.B. 1546: 9/7/78 - Passed - Committee on Taxation.

~ewl~ Introduced Lesislation H.B. 6639: The bill would amend 1921 P.A. 207 by regulating the location of fast food establishments (Introduced September 6, 1978, by Rep. Keith and referred to the Committee on Towns and Counties).

H.B. 6649: The bill would amend 1969 P.A. 319 (the banking code of 1969) by correcting syntactical errors in the recently passed bill permitting banks to make second mortgage loans (Introduced September 7, 1978, by Reps. Edwards, et al. and referred to the Committee on Corporations and Economic Development).

H.B. 6661: The bill would amend section 9 of 1943 P.A. 183by requiring notice of public hearing and disclosure of certain information to landowners in connection with zoning matters (Introduced September 13, 1978 by Rep. Jacobetti and referred to the Committee on Urban Affairs).

S.B. 1666: The bill would amend section 9 of 1974 P.A. 198 by permitting an exception to the 12 month commencement requirement for certain facilities seeking to qualify for a plant rehabilitation exemption certificate (Introduced September 5, 1978, by Sen. DeMaso and referred to the Committee on Corporations and Economic Development). October, 1978 - Page 22

CASE BRIEFS

Case Editor: Nicholas C. Batch Assistant Professor, Law Area College of Business Western Michigan University

CONTRACTORS

Kirkendall bought a lot on land contract~ intending to use it as a home site for his son. Kirkendall contracted with Heckinger to build the houses although he was not licensed as a contractor. Heckinger promised to pay off the land contract and some back taxes, and to provide labor and materials. Kirkendall promised to pay Heckinger a sum which became disputed. Kirkeadall conveyed the lot to Heckinger and the house was built. When the dispute over payment arose, Heekinger refused to convey the lot to Kirkendall~s son, as agreed. ~irkendall then sued for either specific performance of the promised reconveyance or money damages for unjust enrichment. Heckinger counterclaimed for mon~y damages for labor and materials. The trial court determined the conveyance, although absolute on its face, was actually an equitable mortgage which should be discharged upon repayment of Heckinger for the land contract and tax payments, It dismissed the counterclaim holding Heckinger’s lack of a contractor’s license barred his recovery. The Court of Appeals affirmed. On appeal, the Supreme Court determined the counterclaim was properly dis- missed. However, since Kirkendall sought an equitable remedy, equity should be required of Kirkendall. "Heckinger was entitled as a condition to reconveyance to reasonable expenditures for improvements on the property made with the Kirkendalls’ consent .... " ~irkendall v Heckinger, No. 60364 (MSC, Aug. 1978).

DEED RESTRICTIONS

A property owners’ association sought an injunction against maintenance of a licensed adult foster care facility for six elderly women. The basis for the suit was a deed covenant restricting use of the affected realty "for residential purposes exclusively, and no more than one single family dwelling house," and restricting occupancy to "one single family unit." After a summary judgment for the association, the proprietors of the foster home appealed claiming their residents were one single family unit. The Court of Appeals rejected this contention finding "nothing in the record to indicate that the residents of the property at issue ar~ anything more than a group of unrelated individuals sharing a common roof." The proprietors also claimed protection under the policy declared by MCL 125.286a; MSA 5.2963(16a) "that persons in need of community residential care shall not be excluded by zoning from the benefits of normal residential surroundings .... " The Court of Appeals construed the statute as "expressly directed towards zoning restrictions, not private restrictive covenants." The Court found no legislative intent to impair contractual rights provided by deed restrictions which public Dolicy favors. Jayno Heights Land- owners Ass’n v Preston, No. 77-1765 (MCA, Sept. 5, 1978). Justice McGregor (sitting by assignment) dissented vigorously, saying the residents should be considered a single family and the restriction should be voided as contrary to public policy. Additionally, McGregor cited Bellarmine Hills Ass’n v The Residential Systems Co., October, 1978 - Page 23

No. 77-389 (MCA, July 6, 1978). In that case, another panel held six mentally retarded children living with a foster parent in a licensed home constituted a single family under a similar deed restriction.

LAND CONTRACTS

Land contract vendees failed to insure the premises for the benefit of the vendor as the contract required. The vendor procured insurance and added the premiums to the principal balance as the contract allowed. After a fire loss, the insurer paid the vendor her contract balance only. The vendees sued the insurer on a third party beneficiary theory. Reversing the trial court, the Court of Appeals ruled there was no intent to benefit the vendees, thus they acquired no rights under the insurance contract. The Supreme Court reinstated the trial court’s judgment, holding the insurer liable for the full policy amount. Proceeds exceeding the vendor’s interest are held in constructive trust for vendees. Significant was lack of evidence the insurance premium was less than usual for the premises. Wilson v Fireman’s Ins. Co., No. 61031 (MSC, Aug. 30, 1978), reversing 80 Mich App 790; 265 NW2d 49 (1978) reported in Mich. Real Property Review, Vol. 5, No. 2, Page 15.

MINERALS

The Dormant Mineral Act (MCL 55~.291 et seq; MSA 26.1163 et seq.) provides an oil or gas interest held by someone other than the surface owner is deemed abandoned unless during any twenty year period there is a drilling permit issued, actual production, a recorded transaction involving the interest, use of the affected realty for underground gas storage, or a recorded notice of interest. A three year "grace" period was provided for interests in existence when the Act became effective September 6, 1963. However, the Court of Appeals determined this statute an unconstitutional impairment of existing contracts when applied to holders of inter- ests as of the effective date of the statute. The Court found "no grave state emergency" necessitating the action. Likewise, it found the Act "aimed at helping a few individuals or companies and not all of society." Also significant was the permanent effect of the Act: interests were cancelled rather than deferred or suspended. Under such circumstances retroactive application of the statute is unconstitutional. Bickel v Fairchild, No. 77-1225 (MCA, May 22, 1978). [N.B. Practitioners may wish to annotate Standard 15.2 Comment D of their Michigan Land Title Standards~ 3d Ed. to reflect this development.] DNR rules providing for gas drilling units along quarter-quarter section lines provide a reasonable method of achieving the statutory goal of preventing unnecessary wells, even though part of the units may be outside pool boundaries. The Supervisor of Wells may allocate production equitably among land owners in proportion to their share of the pool. Manufacturer Nat’l Bank of Detroit v Department of Natural Resources, No. 77-~909 (MCA, Aug. 8, 1978). October, 1978 - Page 24

MORTGAGES

In ordering a judicial sale in a mortgage foreclosure, a court may fix an "upset price," a minimum price for which the affected property may be sold. MCL 600.3155; MSA 27A.3155. Is this to be the "fair market value" with the assump- tion of a willing buyer and seller under no particular compulsion, or is it the "forced sale value" taking into account the seller’s exigency? The Court of Appeals held it is the latter, that "(r)eality requires that the court make some concession to the forced nature of the sale in setting the upset price." Additionally, it held that after the upset price is set and the sale held and confirmed, there is no statutory authority to amend the upset price. Finally, it held that it was error to deny reasonably attorney fees to the mortgagee when expressly provided in the mortgage. United Growth Corp. v Kelley..Mort~e &. Investment Co., No. 77-3145 (MCA, Sept. 21, 1978).

A mortgagor entered into an oral agreement with his mortgagee bank during foreclosure: the mortgagor would let the redemption period expire, the mortgagee would then convey the land to a third party who would pay the mortgage balance due, and then the third party would convey part of the land back to the mortgagor in consideration of the low price paid for the remainder of the land. E~erything worked except the reconveyance. The Court of Appeals ruled the trial court properly imposed a constructive trust on the property. The statute of frauds is not a bar to the imposition of a constructive trust and for specific performance of the oral agreement. Arndt v Vos, 83 Mich App 484, NW2d (1978).

ZONING

About an acre and a quarter at the northeast corner of Telegraph and Lone Pine in Bloomfield Township was zoned R-3 residential. The owners obtained a circuit court order enjoining the Township from enforcing its zoning ordinance to prevent construction of an office building. De novo review on appeal affirmed the trial court findings. Applying the standards of Kirk v Tyrone Tw]0., 398 Mich 429; 247 NW2d 848 (1976), and Kropf v City of Sterling Heights, 391 Mich 139; 215 NW2d 179 (1974), the Court of Appeals found sufficient evidence "that enforcement of the ordinance will preclude the property’s use for any purpose to which it is reasonably adapted." Evidence showed high traffic noise levels at the corner, probable increased noise from widening of Telegraph, unmarketability of residences in the area, and insufficient depth to build an earthen berm as a noise barrier. "The trial court did not err in finding the zoning restriction uureasonable as applied to plaintiff’s property." Telegraph-Lone Pine Venture Co. v Twp of Bloom- field, No. 31378 (MCA, Sept. 19, 1978).

A church attempted to lease a building in Detroit to the Michigan Department of Corrections for use as a "half-way house," a place for convicts to reside during their final three months of imprisonment while adjusting to normal society. The City of Detroit denied a use permit. The property was zoned for two family residences, although operated as a convent under a non-conforming use antedating the zoning. The church unsuccessfully sought a variance from the Detroit Board of Zoning Appeals. The Department of Corrections intervened in the circuit court. Superintending control was denied. The Court of Appeals affirmed. The issue on appeal was whether the Department of Corrections is subject to local zoning ordinances. The Supreme Court said no. The Department is immune from such October, 1978 - Page ordinances. Construedwas MCL 791.201 et seq; NASA 28.2271 et seq. The Court found a legislative intent "to vest the department ~dth complete Jurisdiction over the state’s penal institutions, subject only to the constitutional powers of the execu- tive and Judiciary, and not subject in any way to any other legislative act, such as the zoning enabling act." The lessor benefits from the lessee’s immunity. Dearden v Cit[ of Detroit, No. 58974 (MSC, Aug. 30, 1978).

! October, 1978 - Page 26

CHAIRMAN’S REPORT

Allen E. Priestley

As I begin my term as fifth chairman of the Real Property Law Section, it is with a feeling of awe and humility because of the great progress and achievement which has been accomplished in the Section in so short a time. We are now embarking upon our fifth full year as a section. All o~ our previous chairmen have been great. Our Section is perhaps the most active in the State Bar of Michigan, one of the largest in numbers and our continuing legal education program has no equal. I shall strive to continue these accomplishments during my tenure in office for there is still much to be done.

My special thanks go to Maury Binkow and his assistant, Caroline Mansfield, for all of the help which they have furnished in the transition to my term of office. Sufficient words of praise cannot be found to compliment Maury on the accomplishments of his administration. He inspired s~ll of us to accomplish much in the past year.

Looking to the future, I see many jobs for many hands in this coming year. The committees are the backbone of any bar organization. Ours have accomplished much, but a great deal remains to be done.

Our Committee on Seminars, Workshops and Meetings under the leadership of Dick Rabbideau has done a superb job. He has great plans for the coming year. The "Homeward Bound" series, annual summer and winter seminars and the seminars in conjunction with the Institute for Continuing Legal Education will bring to you a comprehensive coverage of a multitude of real property subjects.

The Mechanic’s Lien Committee under Bob Bolton has worked long and hard in studying all of the complex problems of the present law and drafting a workable substitute for it. There will be much to be done in the coming year as the new bill is introduced and pursues its way through the legislature.

George Siedel, Chairman of the Committee on Publications~ has continued his excellent job of editing the Michigan Real Property Review. He has plans for publication in a separate volume of the most noteworthy of articles which appeared in past editions of the Review.

Joe Hollander of the Committee on Legislation will continue his alert study of pending legislation and keep the Council advised of all such matters which are of concern to the Section.

Other committees, such as Leases, Cooperatives and Condominiums; Mortgages and Mortgage Foreclosures; Real Estate Titles~ Taxes and Encumbrances; Specialization and Standardized Legal Forms cannot be overlooked. They have all done yeoman jobs in the past year and have much to do in the coming year. October, 1978 - Page 27

The Title Standards Committee ~-lll continue its comprehensive study of real property law and continue to clarify and present in workable form standards to assist the busy practitioner as he encounters real property problems in his daily practice.

The Special Committee on La~jers Title Guaranty Funds is expected to report its conclusions and make recommendations to the Council at an early date.

Elsewhere in this edition of the Review, you will find a complete list of the committees of the Section as they are constituted for the coming year. I urge all committee chairpersons to call a meeting of your committee at an early date to decide upon your objectives and projects for the coming year, create subcommittees and delegate the projects to them. Let us tackle all of the many problems which exist in our field today and continue the accomplishments of our predecessors.

Special emphasis should be placed on curative legislation in the committee projects. We feel it is high time that we added to our legislative duties of monitoring and reacting to new proposed legislation, the further task of conceiving and sponsoring on our own legislation aimed ~t curing some of the problems in our existing laws.

I wish to express mY thanks to all those who have agreed to work on our committees and to say that it is still not too late to volunteer. If you wish to be appointed to a standing committee, let me know and your name will be added to the roster. October, 1978 - Page 28

SECTION NEWS

Our thanks to authors Stephen A. Bromberg and Robert S. Bolton for their practical insights into zoning litigation and mechanic’s lien law developments. Steve serves as Chairman of the Committee on Land Use and Land Sales, while Bob is a former Chairman of the Mechanic’s Lien Committee and now serves on the Section Council.

The lead article for the December issue of the Review is being prepared by the Committee on Commercial Transactions and Syndications, which is chaired by Robert H. Janover.

HOMEWARD BOUND 1978 - 1979 Series

This September marks the second year of the Real Property Law Seminar Series entitled Homeward Bound and we are pleased to announce the following schedule and featured speakers for the 1978 - 1979 Series:

"Apartment Leasing: The Rights and Duties of Landlords and Tenants" - David S. Snyder September 26, 1978 - Somerset Inn

"Insurance" - David J. Dykhouse and William T. Platt (Frank B. Hall) October 24, 1978 - St. Regis Hotel

"Bankruptcy" - Lawrence K. Snider November 21, 1978 - Somerset Inn

"Foreclosure and Recovery of Possession" - Charles T. Harris and Robert V. Peterson December 19, 1978 - St. Regis Hotel

"Understanding Surveys" - Professor George Bowden (Lawrence Institute of Technology) January 27, 1979 - Somerset Inn

"Financial Aspects of Mortgaging" - William Dwire (National Bank of Detroit) February 27, 1979 - St. Regis Hotel

"Environmental Laws Affecting Real Estate Transactions" - Joseph M. Polito March 31, 1979 - Somerset Inn

"Survey of State and Federal Housing Programs" - George J. Mager, Jr. April 24, 1979 - Somerset Inn

"Probating Real Property" - Kenneth E. Konop May 15, 1979 - Somerset Inn October, 1978 - Page 29

"Perfecting and Foreclosing Mechanic’s Liens" - Robert S. Bolton June 26, 1979 - St. Regis Hotel

All programs will begin at 3:30 p.m. and conclude at or before 6:30 p.m., except for Saturday, January 27, 1979 and Saturday, March 31, 1979, when the program will begin at 9:00 a.m. and end at or before 12:00 p.m.

Individual programs are offered at a cost of ~15 for Section members and $20 dollars for Non-Section members. Series discounts and multiple registration discounts are also available.

For more information please contact:

Thomas G. Schroeter, Esq. 318 Wabeek Building Birmingham, MI ~8011

Telephone: (313) 6~5-5000

or

Ms. Carey C. Sales ~00 Renaissance Center 35th Floor Detroit, MI ~82h3 Telephone: (313) 568-6719 October, 1978 - Page 30

REAL PROPERTY LAW SECTION COMMITTEES

COMMITTEE ON COMMERCIAL TRANSACTIONS AND SYNDICATIONS

Robert H. Janover, CHAIRMAN Richard L. Komer 2401 West Big Beaver Road Suite 200 Suite 325 1740 West Big Beaver Road Troy~ Michigan 48084 Troy, Michigan 48084

Joel J. Morris, VICE CHAIRMAN Thomas G. McGurrin, Jr. 35th Floor, 400 Renaissance Center 401 South Washington Square Detroit, Michigan 48243 Suite One, Plaza i Lansing, Michigan 48933 Jerome J. Allen American Center Denis C. Monahan Suite 1040 Suite 2727, i00 Renaissance Center Southfield, Michigan 48034 Detroit, Michigan 48243

Marty A. Burnstein Jerome M. Salle Suite i01 2290 First National Building 20833 Southfield Road Detroit, Michigan 48226 Southfield, Michigan 48075 Stephen R. Senie Laurence B. Deitch 655 E. Jefferson Avenue 3000 Town Center, Suite 2205 Detroit~ Michigan 48226 Southfield, Michigan 48076 Paul Sislin Peter H. DeLoof 24700 Northwestern Highway iii South Fourth Avenue Suite 402 Ann Arbor, Michigan 48104 Southfield, Michigan 48075

Alan G. Enderle George Spanos 800 American National Bank Building Box 567 Kalamazoo, Michigan 49006 Petoskey, Michigan 49770

William S. Fambrough Ronald B. Stephens City National Bank Building 615 American National Bank Building P.O. Box 2659 Kalamazoo, Michigan 49006 Detroit, Michigan 48231 Harvey F. Tennen John W. Gelder 24700 Northwestern Highway, Suite 408 300 Wabeek Building Southfield~ Michigan 48075 Birmingham, Michigan 48011 Samuel Thomas, Jr. Larry K. Griffis Suite 1840~ 3000 Town Center 1990 First National Building Southfield~ Michigan 48075 Detroit, Michigan 48226 Lawrence A. Thompson Jeffrey P. Groehn 17117 West Nine Mile Road, Suite 1106 32362 Craftsbury Road Southfield~ Michigan 48075 Farmington Hills, Michigan 48018 Gary L. Walker Allen Schwartz~ COUNCIL COORDINATOR 1090 W. Huron Street 2500 Detroit Bank & Trust Building Pontiac, Michigan 48053 Detroit, M~chigan 48226 October, 1978 - Page 31

REAL PROPERTY LAW SECTION

COMMITTEE ON GENERAL LIAISON

John H. Kingsepp, CHAIRMAN Russell M. Paquette 3101 North Woodward Avenue Wayne University Law School Suite 300 Detroit, Michigan 48202 Royal Oak, Michigan 48072 Steven C. Schoenberg Edward A. Blaty 36892 Ladywood Lawyers Title Insurance Corporation Livonia, Michigan 48154 2nd Floor, 3270 West Big Beaver Road (Representing Family Law Section) Troy, Michigan h8084 Gordon A. Snavely Stanley M. Fisher Suite 300 17150 Kercheval Avenue 2655 North Woodward Avenue Grosse Pointe, Michigan 48230 Bloomfield Hills, Michigan 48013

Donald R. Flinterman Lawrence A. Thompson 800 First National Building Suite 1106 Detroit, Michigan 48226 17117 West Nine Mile Road Southfield, Michigan 48075 Cecil R. Miskin 714 West Eleven Mile Road Judson M. Werbelow Royal Oak, Michigan 48067 121 East Allegan Street (Natural Resources and Environmental Lansing, Michigan 48933 Law Standing Committee)

George W. Moore, III P.O. Box 528 21 East Long Lake Road, Suite 200 Bloomfield Hills, Michigan 48013 (Representing Taxation Section)

Patrick J. Keating, COUNCIL COORDINATOR 1800 Fisher Building Detroit, Michigan 48202 October, 1978 - Page 32

REAL PROPERTY LAW SECTION

COMMITTEE ON LAND USE AND LAND SALES

Stephen A. Bromberg, CHAIRMAN John J. Lynch Suite 422, NBS Financial Center 201 North Main Street 29201 Telegraph Road Mount Pleasant, Michigan 48858 Southfield, Michigan 48076 Cecil R. Miskin Maxine S. Basso, VICE CHAIRMAN 714 West Eleven Mile Road 2085 Walton Boulevard Royal Oak, Michigan 48067 Rochester, Michigan 48063 Donald C. Morgan Jack D. Shumate, VICE CHAIRMAN 498 South Main Street Consumers Power Company Plymouth, Michigan 48170 212 West Michigan Avenue Jackson, Michigan 49201 William F. Nern 450 North Woodward Avenue Robert M. Cary Birmingham, Michigan 48011 620 City Hall Grand Rapids, Michigan 49503 Robert M. Plait 147 South Putman Street Robert F. Cavanagh Williamston, Michigan 48895 1565 City National Bank Building Detroit, Michigan 48226 Wallace Sagendorph Suite 1800, 3000 Town Center Building Avern Cohn Southfield, Michigan 48075 2290 First National Building Detroit, Michigan 48226 Michael D. Schwartz 38900 Van Dyke Avenue Casper P. Connolly Sterling Heights, Michigan 48077 25140 Lahser Road, Suite C242 Southfield, Michigan 48034 Thomas C. Simpson 20830 Rutland Drive, Box 366 Larry K. Griffis Southfield, Michigan 48037 1990 First Nationa! Building Detroit, Michigan 48226 Edward B. Stulberg 1800 Travelers Tower Richard J. Hairier Southfield, Michigan 48076 444 Union Bank Plaza Grand Rapids, Michigan 49503 Lawrence R. Ternan I0 West Square Lake Road J. Michael Hickox Bloomfield Hills, Michigan 48013 347 N. Main Milford, Michigan 48042 Michael A. Watson 531 South Union Street Janet L. Kinzinger Traverse City, Michigan 49684 204 Center St. P.O. Box 413 Milford, Michigan 48042

Charles C. Lillie 280 North Woodward Avenue, Suite 300 Birmingham, Michigan 48011 October, 1978 - Page 33

REAL PROPERTY LAW SECTION COMMITTEE ON LAND USE AND LAND SALES (Continued)

Martin Wernette 118 Ives Avenue Big Rapids, Michigan ~930T

Benham R. Wrigley, Jr., COUNCIL COORDINATOR 700 Frey Building Grand Rapids, Michigan h8503 October, 1978 - Page 34

.~RRA~L~OPERTY LAW SECTION COMMITTEE 0K LEA~ES, COOPERATIVES AND CONDOMINI~4S

William T. Myers, CHAIRMAN N. W. Lee 400 Renaissance Center 3535 Lk. Eastbrook Blvd. SE 35th Floor Grand Rapids, Michigan 49506 Detroit, Michigan 48243 Robert M. Meisner Essel W. Bailey, Jr. 30100 Telegraph Road, Suite 276 400 Renaissance Center Birmingham, Michigan 48010 35th Floor Detroit, Michigan 48243 Allan Nachman 17117 West Nine Mile Road, 16th Floor Patricia S. Brown Southfield, Michigan 48075 22951 Lakeshore Drive St. Clair Shores, Michigan 48080 John P. Rooney 217 S. Capitol Avenue Marty A. Burnstein Lansing, Michigan 48933 Suite i01 20833 Southfield Road Wayne G. Wegner Southfield, Michigan 48075 3800 City National Bank Building Detroit, Michigan 48226 Lee Mary Danielson 33045 Hamilton Boulevard Fred Weideman Farmington Hills, Michigan 48024 21800 Morley, Apartment 819 Dearborn, Michigan 48124 Morton H. Eskin Suite 413A 24901 Northwestern Highway Southfield, Michigan 48075

David G. Gee 300 Highlander Way Howell, Michigan 48843

Mark D. Goodman 8215 Hall Road (M-59) Utica, Michigan 48087

Samuel S. Herman 407 Travelers Tower Southfield, Michigan 48076

Jeffrey B. Larkin 135 North Saginaw Road, Box 1846 Midland, Michigan 48640

David S. Snyder, COUNCIL COORDINATOR 17117 West Nine Mile Road Southfield, Michigan 48075 October, 1978 - Page 35

REAL PROPERTY LAW SECTION

COMMITTEE ON LEGISLATION

Joseph H. Hollander, CHAIRMAN 417 Seymour Avenue Lansing, Michigan 48933

Russell Prins, VICE CHAIRMAN Attorney General Department Law Building Lansing, Michigan 48902

Frank G. Ebner Detroit Bank & Tin, st Company 46 State Street Detroit, Michigan 48231

Terrence P. Grady 300 Stoddard Building Lansing, Michigan 48933

Richard A. Guilford 1504 Michigan National Tower Lansing, Michigan 48933

Joel J. Morris 35th Floor 400 Renaissance Center Detroit, Michigan 48243

Drew Paterson (Andrew A., Jr.) Suite 1900 ~00 Renaissance Center Detroit, Michigan 48243

James W. Draper, COUNCIL COORDINATOR 35th Floor 400 Renaissance Center Detroit, Michigan 48243 October, 1978 - Page 36

REAL PROPERTY LAW SECTION

COMMITTEE ON MECHANIC’S LIENS

Richard Pennings, CHAIRMAN Michigan State Housing Development Authority Plaza One, 4th Floor, 401 S. Washington Lansing, Michigan 48909

Stanley Weingarden, VICE CHAIRMAN Robert P. Hurlbert 17117 West Nine Mile Road, 16th Floor 525 North Woodward Avenue Southfield, Michigan 48075 P.O. Box 509 Bloomfield Hills, Michigan 48013 Peter M. Alter 2290 First National Building Michael E. Katulski Detroit, Michigan 48226 15195 Farmington Road, Suite A-2 Livonia, Michigan 48154 Richard D. Areddy 375 South Eton Road Jon H. Kingsepp P.O. Box 439 Suite 300 Birmingham, Michigan 48012 3101 North Woodward Avenue Royal Oak, Michigan 48072 Rowe A. Balmer, Jr. 4050 West Maple Road, Suite i00 David B. Meyer Birmingham, Michigan 48010 3434 Davenport Avenue Saginaw, Michigan 48602 Robert D. Brower 465 Old Kent Building Peter A. Nathan Grand Rapids, Michigan 49503 1530 Buhl Building Detroit, Michigan 48226 John R. Castillo 652 Law Building Robert L. Nelson Lansing, Michigan 48913 35th Floor, 400 Renaissance Center Detroit, Michigan 48243 Douglas D. Elliard 3400 David Stott Building Drew Paterson Detroit, Michigan 48226 Suite 1900, 400 Renaissance Center Detroit, Michigan 48243 William S. Fambrough City National Bank Building Howard Rosenberg P.O. Box 2659 17117 West Nine Mile Road, Suite 537 Detroit, Michigan 48231 Southfield, Michigan 48075

Joseph C. Fisher Kenneth W. Schmidt 134 River Street, P.O. Box 334 15116 Beech-Daly Road Elk Rapids, Michigan 49629 Detroit, Michigan 48239

Ronald Greenlee William T. Shaw 1600 First Federal Building 1396 Ellen Street Detroit, Michigan 48226 Livonia, Michigan 48154

Richard A. Guilford Joe D. Sutton 1504 Michigan National Bank Bldg. P.O. Box 10207 Lansing, Michigan 48933 Lansing, Michigan 48901 October, 1978 - Page 37

REAL PROPERTY LAW SECTION COMMITTEE ON MECHANIC’S LIENS (Continued)

Gary A. Trepod Suite One, Plaza I 40]. South Washington Square Lansing, Michigan 48933

Donald A. Wagner 3000 Town Center Suite 1770 Southfield, Michigan 48075

C. Robert Wartell 26600 Telegraph Road, Suite 100-A Southfleld, Michigan 48034

Jimm F. White Suite 504, 3001 West Big Beaver Road Troy, Michigan 48084

Robert S. Bolton, COUNCIL COORDINATOR 1990 First National Building Detroit, Michigan 48226 October, 1978 - Page 38

REAL PROPERTY LAW SECTION

CONMITTEE ON MORTGAGES AND MORTGAGE FORECLOSURES

Gary A. Taback, CHAIRM~N Thomas L. Griem 3221 West Big Beaver Road ii00 Ford Building Suite 309 Detroit, Michigan 48226 Troy, Michigan 48084 Ronald S. Griffith Hudson Mead, VICE CHAIRMAN 1331 East Grand River Avenue 2650 Guardian Building P.O. Box 1070 Detroit, Michigan 48226 East Lansing, Michigan 48823

Michael K. Anspach Robert I. Hart i00 Renaissance Center Michigan National Bank Suite 1976 Lansing, Michigan 48904 Detroit, Michigan 48243 Richard E. Hinks James N. Candler, Jr. 2145 First National Bank Building 800 First National Building Detroit, Michigan 48226 Detroit, Michigan 48226 Martin T. Hogan James C. Conboy, Jr. B000 Town Center 201 S. Main Street Suite ii00 Cheboygan, Michigan 49721 Southfield, Michigan 48075

Peter Cooper Albert L. Holtz 30100 Telegraph Road 29200 Northwestern Highway Suite 366 Suite 409 Birmingham, Michigan 48010 Southfield, Michigan 48034

Warren D. Couger John E. Jacobs First Federal Savings of Detroit 1990 First National Building 1001 Woodward Avenue Detroit, Michigan 48226 Detroit, Michigan 48226 William L. Johnson Marvin C. Daitch 700 Buhl Building 24800 Northwestern Highway Detroit, Michigan 48226 Suite 401 Southfield, M~chigan 48075 Leo M. Kistner 27007 Hoover Road Frank G. Ebner Warren, Michigan 48089 Detroit Bank & Trust Company 46 State Street John R. Laird Detroit, Michigan 48231 401 East Liberty Street Suite 401 Ronald D. Feldman Ann Arbor, Michigan 48108 24610 Oneida Oak Park, Michigan 48237 Paul J. Lay 20926 Schoolcraft Road Terrance P. Grady Detroit, Michigan 48223 300 Stoddard Building 127 W. Allegan Lansing, Michigan 48933 October, 1978 - Page 39

REAL PROPERTY LAW SECTION

COMMITTEE ON MORTGAGES AND MORTGAGE FORECLOSURES

(Continued)

Peter A. Long Allen Schwartz 455 City Center Building 2500 Detroit Bank & Trust Building Ann Arbor, Michigan 48104 Detroit, Michigan 48226

John R. Mann David L. Smith 211 Williams Street, Room 302 540 Old Kent Building Royal Oak, Michigan 48068 Grand Rapids, Michigan 49503

Peter E. 0’Rourke Gordon A. Snavely 2000 First Federal Building Suite 300, 2655 N. Woodward Avenue Detroit, Michigan 48226 Bloomfield Hills, Michigan 48013

George E. Pawlowski Harvey T. Tennen 532 Trust Building Suite 408 Grand Rapids, Michigan 49503 24800 Northwestern Highway Southfield, Michigan 48075 Richard D. Persinger 272-274 E. Eighth Street Peter A. Titta Holland, Michigan 49423 800 Union Bank Building Grand Rapids, Michigan 49503 Anthony V. Pieroni 400 Ford Building Sherwin Vine Detroit, Michigan 48226 24634 Five Nile Road Detroit, Michigan 48239 Asher Rabinowitz 2290 First National Building Donald A. Wagner Detroit, Michigan 48226 300 Town Center Suite 1770 Chester S. Russ Southfield, Michigan 48075 Route 3, Box 694-H Gaylord, Michigan 49735 Michael F. Walsh 740 Michigan National Tower Henry A. Sachs Lansing, Michigan 48933 20095 Mack Avenue Grosse Pointe Woods, Michigan 48236

Thomas G. Sawyer 4086 Rochester Road Troy, Michigan 48098

William B. Dunn, COUNCIL COORDINATOR 1600 First Federal Building Detroit, Michigan 48226 October, 1978 - Page 40

REAL PROPERTY LAW SECTION

PROBATE CODE REVISION COMMITTEE

Ra&ph Jossman, CHAIRMAN 792 Neff Road Grosse Pointe, Michigan 48230

Kenneth E. Dyer 18700 West Ten Mile Road Southfield, F~chigan 48075

Henry Kole 4064 Colonial Boulevard Troy, Michigan 48084

A. Deane Malaker 3000 Town Center, Suite 280 Southfield, Michigan 48075

Thomas C. Simpson 20830 Rutland Drive P.O. Box 366 Southfield, Michigan 48075 October, 1978 - Page

REAL PROPERTY LAW SECTION

COMMITTEE ON PUBLICATIONS

George J. Siedel, III, CHAIP~S~N Graduate School of Business Administration The University of Michigan Ann Arbor, Michigan 48109

Nicholas C. Batch 246 North Twentieth Street Battle Creek, Michigan 49015

Albert L. Holtz 29200 Northwestern Highway Suite 409 Southfield, Michigan ~8034

C. Patrick Kaltenbach 812 Second National Bank Building Saginaw, Michigan 48607

James Marshall 220 Eppley Center Michigan State University East Lansing, Michigan ~8824

Clarence M. Burton, COUNCIL COORDINATOR 136 E. Elizabeth Street Detroit, Michigan 48201 October, 1978 - Page 42

REAL PROPERTY LAW SECTION

COMMITTEE ON REAL ESTATE TITLES~ TAXES AND ENCUMBRANCES

A. Deane Malaker, CHAIRMAN Donald F. Nash 3000 Town Center 1201 Second National Bank Building Suite 280 Saginaw, Michigan 48607 Southfield, Michigan 48075 Myron F. Poe Joseph J. Goluban, VICE CHAIRMAN 1220 South Woodward Avenue 1700 Buhl Building Royal Oak, Michigan 48067 Detroit, Michigan 48226 Thomas Rasmussen James A. Abbott 730 Michigan National Tower 1222 Catalpa Drive Lansing, Michigan 48933 Royal Oak, Michigan 48068 Michael B. Shapiro John R. Castillo 2290 First National Building 652 Law Building Detroit, Michigan 48226 Lansing, Michigan 48913 Richard A. Smith Robert J. Devyak Suite 209 22725 Orchard Lake Road, Suite 15195 Farmington Road Farmington, Michigan 48024 Livonia, Michigan 48154

Leo Goldstein Stephen T. Thomas 1025 American Center 403 Fort Street Southfield, Michigan 48034 Port Huron, Michigan 48060

S. Gerald Gorcyca Robert P. Tremp 600 One Northland Plaza Antrim Professional Building Southfield, Michigan 48076 Bellaire, Michigan 49615

John R. Hand 1206 Woodward Avenue Detroit, Michigan 48226

Carl A. Hasselwander 1650 West Big Beaver Road Suite i00 Troy, Michigan 48084

Ronald K. Johnson 206 E. Ludington Avenue Ludington, Michigan 49431

Donald M. Lansky 1400 American Center Southfield, Michigan 48034

Edward D. Gold, COUNCIL COORDINATOR 17117 West Nine Mile Road 16th Floor Southfield, Michigan 48075 October, 1978 - Page 4B

REAL PROPERTY LAW SECTION

COMMITTEE ON SEMINARS,. WORKSHOPS AND MEETINGS

Richard E. Rabbideau, CHAIRMAN C. Patrick Kaltenbach B5th Floor 812 Second National Bank Building 400 Renaissance Center Saginaw, Michigan 48607 Detroit, Michigan 482~B Thomas G. Schroeter Marvin C. Daitch 2500 Detroit Bank & Trust Building Suite 401 Detroit, Michigan 48226 24800 Northwestern Highway Southfield, Michigan 48075 Sander H. Simen 720 Church St. Stephen E. Dawson Flint, Michigan 48502 525 North Woodward Avenue P.O. Box 509 James M. Tervo Bloomfield Hills, Michigan 4801B 121 E. Allegan Lansing, Michigan 48933 Robert H. Janover 2401 West Big Beaver Road Michael A. Watson Suite 325, Somerset Place 531 South Union Street Troy, Michigan ~8084 Traverse City, Michigan 49684

Maurice S. Binkow, COUNCIL COORDINATOR 2290 First National Building Detroit, Michigan h8226 October, 1978 - Page 44

REAL PROPERTY LAW SECTION

COMMITTEE ON SIGNIFICANT LEGAL DECISIONS

Nicholas C. Batch, CHAIRMAN 246 N. Twentieth Street Battle Creek, Michigan 49015

James N. Candler, Jr. 800 First National Building Detroit, Michigan 48226

Peter E. 0’Rourke 2000 First Federal Building Detroit, Michigan 48226

Daniel Petermann 3101 North Woodward Avenue~ Suite 300 Royal Oak, Michigan 48072

Robert P. Tremp Antrim Professional Building Bellaire, Michigan 49615

Myron Winegarden, COUNCIL COORDINATOR 501 Citizens Bank Building Flint, Michigan 48502 October, 1978 - Page

REAL PROPERTY LAW SECTION

COMMITTEE ON SPECIALIZATION

C. Patrick Kaltenbach, CHAIRM~ 812 Second National Bank Building Saginaw, Michigan 4860T

Cecil R. Miskin, VICE CHAIRMAN Tlh West Eleven Mile Road Royal Oak, Michigan 48067

Jerome Jay Allen American Center, Suite Southfield, Michigan 48034

James C. Conboy, Jr. 201 S. Main Street Cheboygan, Michigan 49T21

Robert J. Devyak 22725 Orchard Lake Road, Suite 6 Farmington, Michigan h8024

Marvin A. Canvasser, COUNCIL COORDINATOR 1T515 West Nine Mile Road Suite 770 Southfield, Michigan 48075 October, 1978 - Page 46

REAL PROPERTY LAW SECTION

COMMITTEE ON STANDARDIZED LEGAL FORMS

Paul A. Ward, CHAIRMAN 865 Union Bank Building Grand Rapids, Michigan 49503

Carl A. Hasselwander Suite I00 1650 West Big Beaver Road Troy, Michigan 48084

Saverio Mistretta 3270 West Big Beaver Road Troy, Michigan 48084

Thomas C. Simpson 20830 Rutland Drive P.O. Box 366 Southfield~ Michigan 48037

Wilfred A. Steiner, Jr. 400 Renaissance Center 35th Floor Detroit, Michigan 48243

Harvey F. Tennen Suite 408 24800 Northwestern Highway Southfield, Michigan 48075

C. Robert Wartell Suite IO0-A 26600 Telegraph Road Southfield, Michigan 48034

Judson M. Werbelow 121 East Allegan Street Lansing, Michigan 48933 October, 1978 - Page 47

REAL PROPERTY LAW SECTION

BUDGET COMMITTEE

James W. Draper, CHAIRMAN 35th Floor, 400 Renaissance Center Detroit, Michigan 48243

David S. Snyder 17117 West Nine Mile Road Southfield, Michigan 48075

Maurice Victor Suite 319, One Northland Drive Southfield, Michigan 48075

Myron Winegarden 501 Citizens Bank Building Flint, Michigan 48502

MEMBERSHIP CHAIRMAN

Leonard J. Grabow 3000 Town Center~ Suite 1800 Southfield, Michigan 48075 October, 1978 - Page 48

REAL PROPERTY LAW SECTION

TITLE STANDARDS COMMITTEE

Chairman - Paul A. Ward Vice Chairman - John R. Baker Secretary - Albert Deane Malaker

John R. Baker T. Gerald McShane Joseph J. Beck Saverio Mistretta Maurice S. Binkow Edward J. Neithercut Clarence M. Burton Robert S. Oliver Frank L. Charbonneau Daniel Petermann Andrew Cooke Allen E. Priestley James W. Draper Russell E. Prins Kenneth E. Dyer Richard F. Rabbideau Patrick J. Egan Henry L. Schram Donald R. Flintermann Allen Schwartz Carl A. Hasselwander Thomas C. Simpson F. Norman Higgs Warren R. Snyder Ralph Jossman Gary A. Taback David L. King Nicholas Volino Janet L. Kinzinger Paul A. Ward Jeffrey B. Larkin Myron Winegarden Albert Deane Malaker Everett L. Wittmer Thomas R. McAskin Ervin C. Ziegelman Thomas G. McGurrin, Jr.