MI CH 1 GAN REAL PROPERTY REVIEW

Vol. 16, No. 4 Winter, 1989

CONTENTS

Regulation of Underground Storage Tanks in Michigan ...... 215 by Robert A. Hykan and John C. Burchett A Primer for Michigan Real Estate Practitioners on Bankruptcy Trustee Avoidance Powers ...... 223 by Jacqueline K. Vestevich and Robert D. Mollhagen Eminent Domain Law for the General Practitioner ...... 233 by David W. Berry and Clara DeMatteis Mager An Analysis of a "Phenomenon" -- Site Condominium Projects ...... 241 by Mark E Makower and Jeffrey R. Jones Reimbursement of Attorney Fees and Litigation Costs Under the Uniform Condemnation Procedures Act ...... 249 by Boris K. Yakima Chairman’s Message ...... 253 by James M. Tervo Legislative Status Report ...... 255 by Gregory L. McClelland Recent Decisions ...... 261 by Joseph A. Lloyd Continuing Legal Education ...... 269 by Arlene R. Rubinstein 1990 Publication Schedule ...... 275 Panel Discussion: The Impact of Real Property Environmental Problems With Re,gard to Property Taxation ...... 277 Section Committee Roster: 1989-1990 ...... 279 Cumulative Article Index ...... 301

Published by the Real Property Law Section State Bar of Michigan M IC H 1 GAN REAL PROPERTY REVIEW

Vol. 16, No. 4 Winter, 1989

The Michigan Real Property Review is the official journal of the Real Property Law Section of the State Bar of Michigan. The Review is published quarterly and is a significant part of the Section’s program of publications, seminars, conferences, legislative liaison and other undertakings for the professional education and development of its members and the Bar.

The Section encourages interested members of the Bar to contribute articles and other publishable material relating to real property law and of interest to the profession. Manuscripts are reviewed by attorneys experienced in the subject matter covered by each article.

Readers are invited to submit articles, comments and correspondence to George J. Siedel, Editor, 526 Business Administration Building, University of Michigan, Ann Arbor, Michigan 48109. The publication of articles and the editing thereof are at the discretion of the Editor. A cumulative index of articles is printed annually in the Winter issue of the Review.

Articles in the Review may be cited by reference to the volume number, abbreviated title of the publication, the appropriate page number and the year of publication as, for example, 14 Mich Real Prop Rev 35 (1987).

Publications Committee, Real Property Law Section George J. Siedel, Editor, Ann Arbor James Ro Brown, Grand Rapids William B. Dunn, Detroit Carl A. Hasselwander, Troy Janet L. Kinzinger, Milford Peter A. Nathan, Detroit

Copyright ¯ 1989 Real Property Law Section of the State Bar of Michigan The views, opinions and conclusions expressed in the Michigan Real Property Review are those of only the respective authors and do not necessarily reflect the position or opinion of the State Bar of Michigan, the Real Property Law Section, the Michigan Real Property Review, its editor or the Publications Committee of the Section. The publication in the Review of articles, letters and other materials does not constitute and should not be construed to be an endorsement of any views, opinions or conclusions which may be expressed or implied. The Review is prepared and published as a part of the legal education activities of the Real Property Law Section, for the benefit of its members and the Bar. In publishing the Review, the Real Property Law Section does not purport to engage in or to render legal or professional services. If legal advice or services are desired or appropriate, an attorney should be consulted.

The Michigan Real Propert~ Review is published by the Real Property Law Section of the State Bar of Michigan. An annual subscription to the Review commences in September of each year and ends in August of the following year. Four issues are published each year. The subscription price is $20 annually, payable in advance. Orders for subscriptions should be sent, with the above-stated payment, to Michigan Real Property Review, Real Property Law Section, State Bar of Michigan, 306 Townsend Street, Lansing, Michigan 48933. MICHIGAN REAL PROPERTY REVIEW Published by the Real Property Law Section State Bar of Michigan

OFFICERS OF THE SECTION:

CHAIRPERSON CHAIRPERSON-ELECT JAMES M. TERVO NYAL D. DEEMS 800 First National Bldg. Suite 800 Detroit 48226 171 Monroe Grand Rapids 49503

VICE-CHAIRPERSON SECRETARY TREASURER JAMES R. BROWN ROBERT R. NIX, 11 STEPHEN E. DAWSON Suite 700 2100 Comerica Bldg. 525 N. Woodward Ave. 200 Ottawa Ave. Detroit 48826 P.O. Box 509 Grand Rapids 49503 Bloomfield Hills 48013

COUNCIL OF THE SECTION:

BERT BURGOYNE JACK D. SHUMATE Suite 200 1650 First National Bldg. 32270 Telegraph Rd. Detroit 48226 Birmingham 48070 THOMAS C. SIMPSON Suite 200 JAMES N. CANDLER 100 W. Long Lake Rd. 800 First National Bldg. P.O. Box 541 Detroit 48226 Bloomfield Hills 48013

CAROL ANN MARTINELLI C. ROBERT WARTELL Suite 209 28400 Northwestern Hwy. 1500 N. Woodward Ave. Essex Centre, 3rd Floor Birmingham 48009 Southfield 48034 SHELDON R WINKELMAN SANDRA L. MEYER 2290 First National Bldg. 35th Floor Detroit 48226 400 Renaissance Center Detroit 48243 RONALD T. BARROWS 650 E. Big Beaver Rd. LAWRENCE D. McLAUGHLIN Suite E 2290 First National Bldg. Troy 48083 Detroit 48226 (Representing Title Standards Committee) GEORGE J. SIEDEL RICHARD W. PENNINGS 5206 Business Administration Bldg. 401 S. Washington Sq. University of Michigan P.O. Box 30044 Ann Arbor 48109-1234 Lansing 48909 (Editor, Real Property Review) COUNCIL OF THE SECTION, CONTINUED:

EXoOFFICIO MEMBERS:

PATRICK J. KEATING STEPHEN A. BROMBERG Detroit Birmingham

MAURICE S. BINKOW Detroit RICHARD E. RABBIDEAU Bloomfield Hills JAMES W. DRAPER Detroit GARY A. TABACK Southfield DAVID S. SNYDER Birmingham PETER A. NATHAN WILLIAM B. DUNN West Palm Beach, Florida Detroit

ALLEN SCHWARTZ CARL A. HASSELWANDER Detroit Troy Real Property Law Section State Bar of Michigan

STANDING COMMITTEES OF THE REAL PROPERTY LAW SECTION 1989 - 1990

BUDGET AND FINANCE MEMBERSHIP Nyal D. Deems, Chairperson James R. Brown, Chairperson Suite 800 Suite 700 1.7]. Monroe Ave. 200 Ottawa Avenue, N.W. Grand Rapids 49503 Grand Rapids 49503

COMMITTEES NOMINATIONS Nyal D. Deems, Ch~*irperson James W. Draper, Chairperson Suite 800 35th Floor 171 Monroe Ave. 400 Renaissance Center Grand Rapids 49503 Detroit 48243

CONTINUING LEGAL EDUCATION PUBLICATIONS Lawrence D. McLaughlin, Chairperson George J. Seldel, 2290 First National Bldg. Co-Chairperson Detroit 48226 526 Business Admin. Bldg. Ann Arbor 48109

DECISIONS and Joseph A. Lloyd, Chairperson James R. Brown, 201. E. Washington Co-Chairperson Ann Arbor 48104 Suite 700 200 Ottawa Ave. Grand Rapids 49503 LEGISLATION Gregory L. McClelland, Co-Chairperson 215 S. Washington Sq. Suite 200 Lansing 48933 and Gall A. Anderson, Co-Chairperson 215 S. Washington Sq. Suite 200 Lansing 48933 Real Property Law Section State Bar of Michigan

SPECIAL COMMITTEES OF THE REAL PROPERTY LAW SECTION 1989 - 1990

BANKRUPTCY, DEBTOR/ ENVIRONMENTAL LAW AND ENERGY CREDITOR RIGHTS Gary A. Trepod, Chairperson Robert D. Mollhagen, Chairperson 636 Michigan National Tower 222 Washington Sq. N., Suite 500 Lansing 48933 Lansing 48933 FEDERAL TAX ASPECTS OF BROKER AND MORTGAGE SERVICES REAL ESTATE TRANSACTIONS Gregory L. McClelland, Co-Chairperson William B. Acker, Chairperson 215 S. Washington Sq., Suite 200 1400 N. Woodward Lansing 48933 P.O. Box 12078 Birmingham 48011 and Gaff A. Anderson, Co-Chairperson MORTGAGES AND RELATED 215 S. Washington Sq., Suite 200 FINANCING DEVICES AND Lansing 48933 SECURITY INTERESTS Richard J. Rankin, Chairperson COMMERCIAL LEASING AND 500 Calder Plaza MANAGEMENT OF REAL ESTATE Grand Rapids 49503 Michael W. Maddin, Chairperson 28400 Northwestern Hwy. OIL, GAS AND NATURAL RESOURCES 3rd Floor Essex Center Lawrence M. Elkus, Chairperson Southfield 48034 525 N. Woodward Ave., Suite I000 Bloomfield Hills 48013 CONDOMINIUMS, PUDS AND COOPERATIVES PARTNERSHIPS, JOINT VENTURES James N. Candler, Jr., Co-Chairperson AND OTHER INVESTMENT VEHICLES 800 First National Bldg. Michael D. Mulcahy, Chairperson Detroit 48226 1600 First Federal Bldg. Detroit 48226 and Jeffery R. Jones, Co-Chairperson PROFESSIONAL RESPONSIBILITY 3rd Floor Essex Centre William C. Roush, Chairperson 28400 Northwestern Hwy. 100 E. Big Beaver Rd., Suite 900 Southfield 48034 Troy 48083

CONSTRUCTION AND PUBLIC FINANCING CONSTRUCTION LIENS Timothy D. Sochocki, Chairperson Ronald P. Strote, Chairperson 101 N. Main St. 100 W. Long Lake Rd., Suite 200 7th Floor Bloomfield Hills 48013 Ann Arbor 48104

EMINENT DOMAIN RESIDENTIAL TRANSACTIONS Boris K. Yakima, Chairperson Robert M. Chimovitz, Chairperson 1700 N. Woodward Ave., Suite A 303 W. Court St. Bloomfield Hills 48013 Flint 48502 Real Property Law Section State Bar of Michigan

SPECIAL COMMITTEES OF THE REAL PROPERTY LAW SECTION 1989- 1990

STATE AND LOCAL TAXATION WATER LAW Samuel J. McKim, Chairperson Ronald T. Barrows, Chairperson 1400 N. Woodward Ave. 650 E. Big Beaver Road P.O. Box 2014 Suite E Bloomfield Hills 48303-2104 Troy 48083

TITLE EXAMINATION AND ZONING AND LAND USE; CONVEYANCING LAND SALES REGULATIONS AND Willard G. Moseng, Chairperson i~ISTORICAL PRESERVATION 401 S. Washington Sq. David W. Berry, Chairperson P.O. Box 30044 32270 Telegraph Rd. Lansing 48909 Suite 200 Birmingham 48010

TITLE STANDARDS Thomas C. Simpson, Chairperson Suite 210 100 W. Long Lake Rd. Bloomfield Hills 48013 MICHIGAN REAL PROPERTY REVIEW Winter, 1989 -- Page 215

REGULATION OF UNDERGROUND STORAGE TANKS IN MICHIGAN

by Robert A. Hykan and John C. Burchett*

1. INTRODUCTION About half of the regulated community consists of gas stations, while the other half is composed of government, Within the past year extensive new federal regulations the transportation industry, manufacturing, etc." A large and Michigan state statutes have gone into effect regard- proportion of the USTs are owned by proprietors of small ing the prevention, detection and remediation of releases businesses with $500,000 or less in total assets who often of petroleum and various other substances into the envi- may not be accustomed to dealing with environmental ronment from underground storage tanks ("USTs’). This regulation12 and may not be able to afford the high cost article summarizes many of the key provisionsI of (1) the of compliance with the new requirements. ~ Nationally, tens new federal regulations ("EPA Regulations")2 promulgated of thousands of UST systems are believed by the EPA to by the United States Environmental Protection Agency be leaking already and many may be endangering drinking ("EPA"), (2) three new Michigan statutes, the Leaking water supplies or creating conditions that may lead to the Underground Storage Tank Act ("LUSTA"),~ the Under- occurrence of fires or explosions. ~4 ground Storage Tank Regulatory Act ("USTRA"),4 and the Underground Storage Tank Financial Assurance Act !I. REGULATORY REQUIREMENTS AND ("USTFAA"),5 and (3) state regulations5 which were in FINANCIAL ASSISTANCE effect prior to the enactment of the new state statutes and which remain in effect today. 7 A. UST Systems Subject To Regulations.

EPA has estimated that more than 2,000,000 UST The threshold issue in any situation involving an systems nationwide located at more than 700,000 facilities underground tank system is whether it constitutes a UST will be subject to the EPA Regulations.8 In Michigan, as system as defined under state or federal law. Subject to of March 28, 1988, 65,570 USTs had been registered with certain exceptions, under the EPA Regulations and the state officials, of which 55,110 were then in use.9 Nation- three new Michigan statutes a UST system is any one or wide more than 97% of USTs store petroleum, mostly a combination of tanks, including underground pipes con- gasoline, while the other 3% store chemical products.I° nected thereto, the volume of which is 10% or more below Winter, 1989 -- Page 216 MICHIGAN REAL PROPERTY REVIEW

ground, used to contain an accumulation of "regulated and overfills may also be used if it is determined to be no substances.’’Is A "regulated substance" is either (i) less protective of human health and the environment than petroleum or (2) any substance which is (a) a "hazardous the equipment specified in the EPA Regulations.~5 substance" as defined in Section 101(14) of the Compre- hensive Environmental Response, Compensation and 2. Existing USTs Liability Act of 1980, as amended, ("CERCLA") I~ and (b) not regulated as a hazardous waste under RCRA.17 By December 22, 1998, ten years after the effective date of the technical requirements of the EPA Regulations, Numerous types of tanks which fall under this general all existing UST systems must comply with either the stan- description have, nonetheless, either been excluded from dards for new systems discussed in the preceding section the definition of UST or been fully or partially deferred from of this article, the standards for upgrading existing systems coverage under the EPA Regulations and the new Michigan discussed in this section, or the closure requirements statutes. 18 discussed below.~6 An existing UST may be upgraded either through internal lining of the tank, cathodic protection, or B. Design, Construction, Installation a combination of the two?7 If a UST is upgraded by internal and Registration Requirements. lining alone, within 10 years after the lining is installed, and 1. New USTs every five years thereafter, the tank must be internally inspected and found to be structurally sound with the lining The EPA Regulations contain a detailed set of stan- still performing in accordance with original design specifica- 28 dards for the design, construction and installation of new tions. Cathodic protection may be used to upgrade a UST UST systems and the upgrading of existing systems. A new only if certain design, inspection and monitoring pro- system is one for which installation commences after the cedures are followed to ensure and confirm that the ~9 effective date of the technical requirements of the EPA cathodic protection is effective in preventing corrosion. Regulations, December 22, 1988, while an existing system Finally, an upgraded UST system must have the same spill and overfill prevention equipment that is required for a new is one for which installation commenced before that date.19 8° Under the EPA Regulations, a new tank must be con- UST system. USTs subject to the Flammable and Com- structed of either: (I) fiberglass-reinforced plastic; (2) bustible Code must also meet overfill prevention require- 31 cathodically protected steel; (3) a steel-fiberglass-reinforced- ments set out therein. plastic composite; (4) metal, without additional corrosion protection measures, provided that the tank is installed at 3. Registration a site determined by a corrosion expert not to be corrosive enough to cause the tank to have a release due to corro- The owner of a UST system that has not been closed sion; or (5) another material approved by the "imple- must register and annually renew the registration of the 3z menting agency;’ which, in Michigan, is the Michigan State system with the Fire Marshal Division. Police, Fire Marshal Division ("Fire Marshal Division").2° The EPA Regulations set out national industry codes and C. Operating Requirements and standards which may be used to comply with the design, Release Detection Equipment construction and installation requirements of those regula- tions.21 The EPA Regulations also prescribe operating require- ments intended to prevent releases from UST systems. The Each new UST system must also have equipment to owner and operator of any UST system must prevent spills prevent spilling and overfilling unless the system is filled and overfills by ensuring that the volume available in the by transfers of no more than 25 gallons at one time.2~ The tank is greater than the volume of the product to be trans- required equipment includes a spill prevention device, such ferred thereto.~3 Systems with cathodic protection must be as a catchment basin, that will prevent releases of stored inspected for proper operation within six months of installa- product to the environment when the hose used to transfer tion and at least every three years thereafter to ensure that the product is detached from the fill pipe.23 The overfill the protection comports with a standard code of industry protection equipment must automatically shut off the flow practice.~4 Inspections are also required every 60 days for into the tank when it is no more than 95% full, or must UST systems with impressed current cathodic protection alert the transfer operator when the tank is no more than to ensure that the equipment is running properly.~s Each 90% full by restricting the flow into the tank or triggering UST system also must be made of or lined with materials a high-level alarm.~4 Alternative equipment to prevent spills that are compatible with the substance stored therein,as MICHIGAN REAL PROPERTY REVIEW Winter, 1989 -- Page 217

Repairs to UST systems must be properly conducted unexplained presence of water in the UST.4s Such unusual in accordance with a code of practice developed by a conditions need not be reported, however, if the system nationally recognized association or an independent testing equipment is found to be defective but not leaking and is laboratory. 37 In addition to the industry code test, the EPA immediately repaired or replaced.~s Similarly, monitoring Regulations also prescribe additional requirement standards results indicating that a release may have occurred need for system repairs and inspection and monitoring follow- not be reported if the monitoring device is found to be ing such repairs. The standards vary from system to system, defective and is immediately repaired and additional depending on such factors as the type of material used to monitoring does not confirm the initial result, or, in the case construct the system or the type of corrosion protection of inventory control suggesting a leak, a second month of which the system has.38 data does not confirm the initial result.~7

UST owners and operators must install certain equip- After reporting a suspected release, the owner or ment and adhere to certain procedures prescribed by the operator of the UST system must either undertake correc- EPA Regulations for detecting releases of stored substances tive action, discussed below, or further investigation.48 The into the environment. For new UST systems, release detec- owner or operator must conduct tightness tests to deter- tion requirements are applicable immediately upon installa- mine whether a leak has occurred and undertake correc- 39 tion. For each existing system, the release detection tive action if those tests confirm the occurrence of a leak.49 requirements of the EPA Regulations become applicable No further investigation is required if the test results do not some time between December 22, 1989 and December indicate the presence of a leak, and if there is no environ- 22, 1993, depending upon when the system was installed, mental contamination suggesting that a leak has occurred,s° under a phased schedule in which the oldest systems are Environmental sampling must be conducted at the site if required to implement release detection first. 40 Operators the system test indicates that no leak has occurred, but of tanks subject to the Flammable and Combustible Liquids environmental contamination does suggest that a leak has Code are also currently subject to a requirement that they occurred,sl If the sampling demonstrates that a leak has maintain either "an accurate inventory record or a leak occurred, corrective action, discussed below, must then be detection program.., for indication of possible leakage:’41 initiated,sz

Among the types of release detection equipment or Upon confirming the occurrence of a releases~ the procedures which may be utilized in a given case are UST owner or operator must take immediate action to automatic tank gauging of inventory levels, monitoring of prevent any further release and identify and mitigate fire, soil gas for vapors given off by released substances, ground- explosion and vapor hazards presented by the release,s~ water monitoring, monitoring of leaks between the UST Unless directed to do otherwise by the Director of the system and a secondary barrier around or beneath the 42 Michigan Department of Natural Resources ("MDNR"), the system, and tank tightness testing. owner and operator must then remove as much of the D. Investigation Reporting and Initial regulated substance from the UST system as is necessary Abatement of Releases. to prevent further releases, visually inspect the releases, remove and dispose or properly remediate contaminated If certain conditions are present at a UST system which soil, prevent further migration of the released substance indicate that a release from the system has occurred, or into surrounding soils and groundwater, measure for the if a release is confirmed, the owner or operator of the presence of a release where contamination is most likely system must report such conditions or confirmed releases to be present and continue to monitor and mitigate any to the Fire Marshal Division within 24 hours.~ additional fire and safety hazards posed by vapors or "free product" that has migrated into subsurface structures, such Suspicious conditions which must be reported include as sewers or basements,ss "Free product" is a regulated the presence of released regulated substances at the UST substance that is present as a nonaqueous phase liquid site or in the surrounding area, unusual operating condi- (e.q., liquid not dissolved in water.)~s The owner and tions suggesting the occurrence of a release, or monitor- operator must specifically investigate to determine whether ing results from a release detection method which indicate free product is present, and if it is, must begin removal of a-release may have occurred.~4 Examples of operating it "to the maximum extent practicable:’sT conditions which would suggest the ~occurrence of a release include erratic behavior of product dispensing equipment, Within 20 days after release confirmation or another the sudden loss of product from the UST system or the reasonable time period set by MDNR, the owner or Winter, 1989 -- Page 218 MICHIGAN REAL PROPERTY REVIEW

operator must submit a progress report to MDNR on the announced cleanup criteria for corrective action plans initial abatement measures he has taken.58 Unless directed addressing petroleum releases and has indicated that no to do otherwise by MDNR, the owner or operator must plan will be approved that exceeds the criteria without submit a report to MDNR on his efforts to remove free written approval of MDNR’s Environmental Response product within 45 days after confirmation of a release,s9 Division Chief.~9 In addition, within 45 days of release confirmation or another reasonable time period set by MDNR, the owner LUSTA also authorizes MDNR to issue a "corrective or operator must submit the information he has collected action order" to a UST owner or operator requiring com- pertinent to the nature and quantity of the release, the pliance with that statute/° The owner or operator may characteristics of the affected environment, and the types contest such an order by requesting a hearing in front of of harm which may have been caused by the release,~° as the Natural Resources Commission (the "Commission"), well as a work plan for a more extensive investigation 6f and may obtain review of any decision of the Commission the full extent of the contamination.~I MDNR must approveby the Circuit Court for Ingham County or the county or disapprove the work plan within 30 days and, uppn where the subject release occurred. 71 Furthermore, LUSTA approval, the owner or operator must implement the provides that if MDNR learns of a suspected or confirmed plan.~z release, it "may undertake corrective actions necessary to protect the public health, safety, welfare, or the environ- ’’7z E. Corrective Action Plans. ment.

After reviewing any of the above-described informa- F. Closure. tion related to a release, MDNR may require the owner An owner or operator must provide notice to the Fire and operator to submit additional information or to develop Marshal Division at least 30 days before either permanent and submit a corrective action plan for responding to contaminated soils, groundwater and surface water.~3 Alter- closure of a UST or a "change-in-service" -- i.e., changing the use of the UST system to storage of non-regulated natively, owners and operators may, after performing the initial abatement measures and site characterization, submit substances, unless such action is taken as corrective action in response to a release.~3 Following the notice but prior a corrective action plan on their own initiative.~4 In either case, the plan must provide for "adequate protection of to completion of permanent closure or change-in-service, the owner or operator must measure for the presence of human health and the environment:’~8 The owner and a release where contamination is most likely to be present operator must implement the plan after it has been 74 approved by MDNR.~ Owners and operators may also at the UST site. If contamination is discovered, the owner or operator must undertake corrective action.TM To perma- begin a clean-up before their corrective action plans are nently close a UST subject to both the EPA Regulations approved, provided they notify MDNR of their intention and the Flammable and Combustible Liquids Rules, the to do so, comply with any conditions imposed by MDNR owner or operator must empty and clean it and remove and incorporate their self-initiated clean-up measures in it from the ground unless removal is impractical because, the corrective action plans submitted to MDNR for 7~ approval.~7 for example, the tank is under another structure. Upon removal, the tank must be freed of flammable vapors and punctured with holes to render it unfit for further use. ~ Beyond providing that a corrective action plan must ensure "adequate protection of human health and the G. Financial Responsibility Requirements environment;’ LUSTA provides little guidance on deter- and State Assistance Fund For Owners mining what cleanup standard must be met in such a plan. And Operators Of Petroleum USTs. The EPA Regulations provide some help by listing six factors to be considered in evaluating a plan: the physical The EPA Regulations also require the owners and and chemical characteristics of the regulated substance; the operators of petroleum USTs to demonstrate financial hydrogeologic characteristics of the facility and surround- responsibility for taking corrective action and for compen- ing area; the proximity, quality and current and future uses sating third parties for bodily injury and property damage of nearby waters; the potential effects of residual con- caused by accidental releases arising from the operation tamination on nearby waters; an exposure assessment; and of such USTs. TM any other information assembled by the owner or operator in complying with the release response and corrective The date on which a given owner or operator of a action portion of the EPA Regulations.~5 MDNR has also petroleum UST must comply with the financial respon- MICHIGAN REAL PROPERTY REVIEW Winter, 1989 -- Page 219

sibility requirements varies with certain characteristics of UST owner or operator fails to do so.’7 If money from the the owner.TM The compliance deadlines are: January 24, emergency response fund is expended for corrective action 1989, for petroleum marketing firms8° owning 1,000 or "the person or persons responsible for the corrective action more USTs and all other UST owners that report a tangible shall be liable to the state for all such expenditures:’85 The net worth of $20 million or more to certain enumerated remainder of the regulatory fees are to be deposited in a institutions or agencies; October 26, 1989, for all petroleum financial assurance fund which is to be used for the follow- marketing firms owning 100 to 999 USTs; April 26, 1990, ing items in the following order: the administrative costs for all petroleum marketing firms owning 13 to 99 USTs of implementing USTFAA; an interest subsidy program to at more than one facility; and October 26, 1990, for all subsidize low interest loans for the replacement of existing other petroleum UST owners.81 petroleum USTs with new USTs; and payment of costs that would otherwise be incurred by petroleum UST owners or The amounts of financial responsibility which must be operators in undertaking corrective action or indemnifi- demonstrated by petroleum UST owners or operators are cation of such owners or operators against judgments or as follows: $1 million per occurrence for petroleum USTs settlements arising out of injuries suffered due to releases that are located at petroleum marketing facilities or that from petroleum USTs.~9 handle an average of more than 10,000 gallons of petroleum per month; $500,000 per occurrence for all An owner or operator may receive money from the others; $I million annual aggregate for owners or operators financial assurance fund for corrective action or for indem- of one to 100 petroleum USTs; $2 million annual aggregate nification for a judgment or settlement only if (1) the release for owners or operators of 101 or more petroleum USTs.8~ from which the corrective action or indemnification arose was discovered and reported on or after July 18, 1989, Financial responsibility may be demonstrated through (2) the subject UST was properly registered at the time of various mechanisms such as self-insurance, a guarantee, discovery of the release, (3) the owner or operator was in insurance and risk retention group coverage, a surety bond, compliance with reporting and recordkeeping requirements or a letter of credit.~ Most importantly for Michigan under the Fire Prevention Code, LUSTA, USTRA, RCRA petroleum UST owners and operators, the EPA financial and any regulations promulgated under these statutes,9° responsibility regulations may also be satisfied through a (4) the owner or operator has provided the administrator showing that the costs of responding to a release can be of the fund with proof of ability to pay for the first $10,000 paid from a state fund devoted to that purpose and of the corrective action or indemnification costs and (5) approved by EPA.~4 Through USTFAA, Michigan has the owner or operator has not defaulted on a loan sub- provided for a state self-insurance fund to which petroleum sidized through the USTFAA.91 UST owners and operators can turn to pay for costs arising from releases. At the time this article went to press, a Prior to being eligible to receive money from the fund description of the USTFAA financial assurance fund had the owner or operator must pay the first $I0,000 of been submitted to EPA, but EPA has not yet indicated corrective action or indemnification costs, an amount whether it would approve reliance on the fund by known as the "deductible.’’~2 Expenditures from the fund petroleum UST owners or operators as the means of satis- for corrective action or indemnification per occurrence may fying the financial responsibility requirements of the EPA not exceed $I,000,000.~ Regulations.~5 The USTFAA financial assurance fund nonetheless merits detailed examination, not only because If the owner or operator meets the initial requirements it may serve as the means for an owner or operator to for obtaining assistance for corrective action or indemnifi- satisfy the financial responsibility requirements but, more cation, he must then follow further procedures prescribed importantly, because it can pay for the significant costs often by USTFAA to "access" the financial assurance fund.~4 With facing the owner or operator of a leaking petroleum UST. respect to corrective action assistance, the owner or operator must submit a corrective action plan pursuant to USTFAA imposes a 7/8¢ per gallon "environmental LUSTA and a bid to the administrator of the flnanci.al protection regulatdry fee" on refined petroleum products assurance fund for corrective action funding.~ When a bid sold for resale or consumption in Michigan which is is received, the administrator of the fund must determine expected to generate $325 million over five and one half whether MDNR has determined that the work performed years.86 The first $I million of regulatory fees are to be or proposed to be performed is consistent with the correc- placed in an emergency response fund to be used to tive action plan, whether the cost of performing the work finance corrective actions undertaken by MDNR where a is reasonable and whether the owner or operator is eligible Winter, 1989 -- Page 220 MICHIGAN REAL PROPERTY REVIEW

to receive funding.96 If the fund administrator approves the punishable by civil penalties of $10,000 for each UST for bid, the owner or operator may submit work invoices from each day of violation, while violations of compliance orders his contractor to the fund administrator for payment.97 If are punishable by civil penalties of $25,000 per day.l°7 Any the fund administrator determines that the invoice is owner who knowingly fails to register a UST or knowingly reasonable in terms of cost and consistent with the submits false registration information is subject to a civil approved bid, and if MDNR determines the work has been penalty of $10,000 per UST.1°8 carried out consistent with the corrective action plan, the state treasurer shall then pay the contractor if sufficient LUSTA authorizes the Attorney General of Michigan money exists in the fund.9~ The fund administrator is also to commence an action on behalf of the director of MDNR authorized to approve reimbursement for a work invoice for injunctive relief, recovery of costs incurred by the state paid by a UST owner or operator.99 for taking corrective action, damages to natural resources, enforcement and litigation costs incurred by the state, a With respect to indemnification, the owner or operator civil fine of $10,000 per day for non-compliance with must submit to the administrator of the fund an indem- LUSTA, civil fines of $25,000 per day for non-compliance nification request.I°° If the owner or operator is eligible~for with corrective action orders issued under LUSTA and funding, the fund administrator must forward a copy of the recovery of funds provided to the state by EPA to address indemnification request to the Attorney General, who must a release.I°9 A UST owner or operator is not liable under approve the request if there is a legally enforceable judg- LUSTA if he can prove that the subject release which would ment against the owner or operator caused by a release otherwise give rise to liability was caused solely by an act or if a settlement with a third party due to a release is of God, an act of war, or an act or omission of a third reasonable. 101 If the Attorney General approves the request party.11° The statute also provides for an innocent land- for indemnification, the fund administrator must then owner defense.11’ Violations of USTRA are punishable by review whether the owner or operator has met the $10,000 civil fines of up to $5,000 per day per UST or as mis- deductible requirement and has not exceeded the $1 demeanors for which the violator is subject to a fine of million limitation on expenditures.1°= If upon review the $500, imprisonment for up to 6 months, or both."= owner or operator is determined to be eligible to receive funding for indemnification, the administrator is to forward FOOTNOTES the approved request for indemnification to the Depart- ment of Treasury, and the state treasurer then makes * Robert A. Hykan and John C. Burchett are associates payment to the owner or operator if sufficient money exists in the Detroit office of Honigman Miller Schwartz and in the fund.l°3 ]n addition, effective three years after the Cohn. date the financial assurance fund begins operating, an Due to space limitations this article necessarily contains an owner or operator of a petroleum UST will not be eligible overview, but not an exhaustive restatement, of the federal to receive indemnification for releases from that UST if the and state legal requirements applicable to UST owners and UST does not meet the standards of the EPA Regulations operators. UST owners or operators should also check to and USTRA applicable to new USTs installed after January determine whether any local ordinance imposes additional requirements beyond those discussed in this article. 1, 1989 and the owner or operator has not submitted a complete application and satisfied all other requirements The EPA Regulations are to be codified in 40 C.F.R. Part 280 and were published at 53 Fed. Reg. 37194-212, for an interest subsidy to bring the UST into compliance 43370-82, 44976-90, 51273-74 (1988), 54 Fed. Reg. with the aforementioned requirements.TM 5451-52 (1989), pursuant to Section 9003 of the Resource Conservation and Recovery Act ("RCRA"), as amended, 42 The financial assurance fund is to begin operating on U.S.C. § 6991b. February 15, 1990 or any earlier date on which the state 1988 P.A. 478, as amended by 1989 P.A. 150, M.C.L. §§ treasurer determines there is sufficient money in the fund 299.831 et 1°6 for it to begin operating. 4. 1984 P.A. 423, as amended by 1988 P.A. 479 and 1989 P.A. 151, M.C.L §§ 299.701 et seq. IlL ENFORCEMENT 5. 1988 P.A. 518, as amended by 1989 P.A. 152 and 1989 EPA may issue an administrative order requiring P.A. 161, M.C.L. §§ 299.801 et seq. compliance with the EPA Regulations or institute a civil 6. Regulations on Storage of Flammable and Combustible Liquids, ("Flammable and Combustible Liquids Rules"), action for appropriate relief, including a temporary or Michigan Administrative Code ("MAC") R29.2301 et seq. permanent injunction, against any person violating the EPA The Flammable and Combustible Liquids Rules were enacted Regulations.~°~ Violations of the EPA Regulations are pursuant, not to any of the three new Michigan statutes, but MICHIGAN REAL PROPERTY REVIEW Winter, 1989 -- Page 221

rather pursuant to the Fire Protection Code, 1941 P.A. 207, 24. ld. § 280.20(c)(1)(ii). as amended, M.C.L. 5§ 29.1 et seq. The Flammable and Combustible Liquids Rules apply to tanks storing flammable 25. ld. § 280.20(c)(2)(i). and combustible liquids as defined in national industry codes 26. ld. § 280.21(a). incorporated into Michigan law at MAC R 29.2305, 29.2307 and 29.2321. Most USTs will be subject to National Fire 27. Id. § 280.21(b). Protection Association Pamphlet No. 30, "Flammable and 28. ld. § 280.21(b)(1)(ii). Combustible Liquids Code" (1981), incorporated by reference into Michigan law, with amendments, at MAC R 29. ld. § 280.21(b)(2). 29.2321-29.2430 ("Flammable and Combustible Code"). 30. Id. § 280.21(d). The Flammable and Combustible Code applies to all flam- mable and combustible liquids except those that are solid 31. MAC R 29.2352. ° at 100 F or above. Flammable and Combustible Code, 32. USTRA § 2(1) and (2), M.C.L. § 299.702(1) and (2). § 1-1.1 33. 40 C.F.R. § 280.30(a). 7. New state regulations on USTs, which may alter some of the standards or requirements described in this Article, are 34. ld. § 280.31(b). expected to be promulgated pursuant to LUSTA §8 5 and 35. ld. § 280.31(c). 15, M.C.L. 8§ 299.835 and 299.845; USTRA § 2(9) and 7, M.C.L. 8§ 299.702(9) and 299.707; USTFAA § 22, 36. Id. § 280.32. M.C.L. § 299.822, but no such regulations had been promulgated when this article went to press. 37. ld. § 280.33(a). 8. 53 Fed. Reg. at 37083 (1988). 38. ld. § 280.33(b)-(e). 9. Department of State Police, Fire Marshal Division, UST 39. Id. § 280.40(c). Program Meeting Agenda, June 1, 1988, at 4. 40. ld. 10. Environmental Fact Sheet, EPA Office of Solid Waste and 41. Id. MAC R 29.2354. Emergency Response 1 (1988). 42. ld. 5§ 280.40-280.45. 11. ld. 43. Id. §§ 280.50, 280.61, LUSTA § 6(1)(c), M.C.L. § 12. 53 Fed. Reg. at 37096 (1988). 299.836(1)(c); USTRA § 3(2), M.C.L. § 299.703(2). De- 13. N.Y. Times, June 19, 1989, at 1, c. 5; Detroit News, July pending on the facts in a given case, the UST owner or operator may also have a duty to report a release from a 5, 1989, at 1B, c.1. UST to regulatory officials under various other legal 14. EPA Office of Underground Storage Tanks, Musts for USTs authorities, e.g., Section 5g of the Michigan Fire Protec- A Users Guide to Regulations for Underground Storage Tank tion Code, M.C.L. § 29.5g; Section 103 of CERCLA, 42 Systems 1 (1988). U.S.C. § 9603; Michigan Water Resources Commission 15. 42 U.S.C. § 6991(1); 40 C.F.R. § 280.12; LUSTA § 4(6), Rule 164, MAC R 323.1164. M.C.L. § 299.834(6); USTRA § l(m), M.C.L. § 44. 40 C.F.R. § 280.50. 299.701(m) and USTFAA § 5(8), M.C.L. § 299.805(8). 45. Id. § 280.50(b). 16. 42 U.S.C. § 9601(14). 46. ld. 17. 42 U.S.C. § 6991(2); 40 C.F.R. § 280.12; LUSTA § 4(5), M.C.L. § 299.834(5); USTRA § l(k), M.C.L.§§ 47. ld. § 280.50(c). 299.701(k). 48. ld. § 280.52. 18. 42 U.S.C. § 6991(1)(A)-(I); 40 C.F.R. 8§ 280.10(b),(c) 49. Id. § 280.52(a)(1). and (d), 280.12; LUSTA § 4(6)(a)-(p), M.C.L.§ 299.834(6)(a)-(p); USTRA § l(m) (i)-(xvi), § 10a, M.C.L. 50. ld. § 280.52(a)(21. § 299.701(m)(i)-(xvi), 299.710a; USTFAA § 5(8)(a)-(u), 51. ld. § 280.52(a)(3). M.C.L. § 299.805(8)(a)-(u). Some such tanks may still be subject to the Flammable and Combustible Liquids Rules. 52. ld. § 280.52(b)(1). 19. 53 Fed. Reg. at 37082; 40 C.F.R. § 280.12. 53. After the Fire Marshal Division learns of a confirmed release it must immediately notify the Michigan Department of 20. ld. § 280.20(a). The Rre Marshal Division has stated that, although the EPA Regulations do not require cathodic Natural Resources ("MDNR"). LUSTA § 6(2), M.C.L. § protection for fiberglass-steel composite tanks, such pro- 299.836(2). tection is required under the Flammable and Combustible 54. 40 C.F.R. § 280.61(b) and (c), LUSTA § 6(1)(a) and (b), Code for tanks subject to that code. Michigan State Police, M.C.L. § 299.836(1)(a) and (b). Fire Marshal Division, Underground Storage Tank News, November 1988, at 3 (1988); see MAC R 29.2334. 55. 40 C.F.R. § 280.62(a); LUSTA § 7(1), M.C.L. § 299.837(1). 21. 40 C.F.R. 8§ 280.20(a)(1), (2), (3) and (d). 56. 40 C.F.R. § 280.12; LUSTA § 3(4), M.C.L. § 299.833(4). 22. ld. § 280.20(c). 57. 40 C.F.R. 8§ 280.62(a)(6), 280.64; LUSTA § 7(5), M.C.L. 23. ld. § 280.20(c)(1)(i). § 299.837(5). Winter, 1989 -- Page 222 MICHIGAN REAL PROPERTY REVIEW

58. 40 C.F.R. § 280.62(b); LUSTA § 7(2), M.C.L. § 82. Id. § 280.93(a) and (b). 299.837(2). 83. Id. § 280.94(a). 59. 40 C.F.R. § 280.64(d); LUSTA §7(5)(d), M.C.L. §§ 299. 83715) (d). 84. Id. § 280.101. 60. 40 C.F.R. § 280.63; LUSTA § 7(4), M.C.L. §§ 299.837(4). 85. Telephone conversation with Lieutenant Arthur Nash, Jr., Fire Marshal Division, November 2, 1989. 61. LUSTA § 7(6), M.C.L.§ 299.837(6). 86. USTFAA § 808(1), M.C.L. § 299.808(1); Michigan Waste 62. LUSTA § 7(7), M.C.L. § 299.837(7). Report, Inc., Michigan Waste Report 103 (July 31, 1989). LUSTA § 63. 40 C.F.R. § 280.66(a); 8(1), M.C.L. 87. USTFAA § 807(5), § 808(4),M.C.L. § 299.807(5), § 299.838(I). 299.808(4). 64. 40 C.F.R. § 280.66(a);LUSTA § 8(1), M.C.L. § 299.838(1). 88. ld. § 807(7), § 299.807(7). 65. 40 C.F.R. § 280.66(a); LUSTA § 8(1), M.C.L. 89. Id. § 6(4), 8(4), 19, § 299.806(4), 299.808(4), 299.819. § 299.838(1). 90. The EPA Regulations require owners and operators to 66. 40 C.F.R. § 280.66(c); LUSTA § 8(2) and (4), M.G.L. maintain records, for example, on such items as repairs §§ 299.838(2) and (4). of the UST system, recent compliance with release detec- tion requirements, results of the site investigation when a 67. 40 C.F.R. § 280.66(d); LUSTA § 8(5), M.C.L. UST is closed, and compliance with corrosion prevention § 299.838(5). requirements. 40 C.F.R. § 280.34(b). The reporting and 68. 40 C.F.R. § 280.66(b). recordkeeping requirements are summarized in Michigan State Police, Fire Marshal Division, Underground Storage 69. Fire Marshal Division, Michigan State Police, Underground Storage Tank News, June 1989, at 4-5. A UST owner or Tank News, Fall 1989 at 4-7. operator faced with the prospect of initiating corrective action 91. USTFAA § 9(1)(a) - (e), M.C.L. § 299.809(1)(a) - (e). should check to determine whether MDNR has replaced The United States government is ineligible for assistance these recommended clean-up levels with clean-up standards from the financial assurance fund. Id. § 9(I)(f), § set in formally promulgated rules or regulations. See foot- 299.809(1) (f). note 7, supra. 92. ld. § 13, § 299.813. 70. LUSTA § 10(1), M.C.L. § 299.840(1). 93. Id. § 10, § 299.810. 71. Id. § 10(2)-(5), § 299.840(2)-(5). 94. Id. § 15(1), § 299.815(1). 72. Id. § 11, § 299.841. 95. Id. 73. 40 C.F.R. § 280.71(a) and (c); see also MAC R 29.2336. 15(2), 299.815(2). 74. ld. § 280.72(a). 96. Id. § § 75. ld. § 280.72(b). 97. ld. § 15(4), § 299.815(4). 76. ld. § 280.70(b), MAC R 29.2336. If the tank cannot be 98. ld. § 15(4), (6), (9), § 299.815(4), (6), (9). removed, it must be "safeguarded in a manner approved 99. Id. § 15(7), § 299.815(7). by the" Fire Marshal Division or the local fire marshal, ld. 100. Id. § 16(1), § 299.816(1). 77. ld. 78. 40 C.F.R. §§ 280.90-280.111. EPA has not yet promul- 101. ld. gated financial responsibility requirements for hazardous 102. ld. substance USTs. 103. Id, § 16(1) and (3), § 299.816(1) and (3). 79. Both the owner and the operator of a petroleum UST may be held liable for noncompliance with the financial respon- 104. Id. § 11, § 299.811. sibility requirements, but the compliance deadline for a given 105 Id. UST is determined only by the characteristics of its owner. § 12, § 299.812. ld. § 280.90(e). 106. 42 U.S.C. § 6991e(a)(1). 80. Petroleum marketing firms are defined as all firms owning 107. 42 U.S.C. § 6991e(d)(2) and (a)(3). petroleum marketing facilities, which include all facilities at which petroleum is produced, refined, sold or transferred 108. Id. § 6991e(d)(1). to other petroleum marketers or the public, ld. § 280.92(i) 109. LUSTA § 13, M.C.L. § 299.843. and (j). 110. Id. § 12(2)(a), § 299,842(2)(a). 81. ld. § 280.91. 111. Id. § 12(2)(b), § 299.842(2)(b). 112. USTRA § 11, M.C.L. § 299.711; 6991b(h). MICHIGAN REAL PROPERTY REVIEW Winter, 1989 -- Page 223

A PRIMER FOR MICHIGAN REAL ESTATE PRACTITIONERS ON BANKRUPTCY TRUSTEE AVOIDANCE POWERS

by Jacqueline K. Vestevich and Robert D. Mollhagen*

Introduction concepts. These include the power to avoid fraudulent transfers utilizing either (1) a special one year fraudulent 1 A primary object of the Bankruptcy Code is to ensure transfer rule created by the Bankruptcy Code, or (2) state equal treatment of similarly situated creditors. To this end, fraudulent conveyance laws. While these powers permit 2 the Bankruptcy Code grants to the Trustee the power to the Trustee to avoid transfers which are obviously avoid or set aside certain transfers of money or property "fraudulent" in nature, under the Bankruptcy Code, courts 3 made by a Debtor to third parties prior to and after the are increasingly prone to allow avoidance of transfers date of bankruptcy. The result is the recovery of property previously viewed as unchallengeable. Other avoidance or money for the bankruptcy estate inuring to the benefit powers can affect transfers in less obvious situations. The of creditors. risks involved in purchasing real estate cannot be fully appreciated without reviewing situations where the These avoidance powers can be used to set aside avoidance powers can surprise those unaware of the subtle transfers of interests in real property. Since interests in real nuances of (1) the hypothetical bona fide purchaser status estate are unique, unexpected voidability of transfers can of the Trustee as the date of the bankruptcy filing, (2) the prove difficult, if not impossible, to remedy. Every real post-petition transfer rule, and (3) the preferential transfer estate lawyer should have an awareness of circumstances 4 presenting risks of voidability and be able to red flag rule. potential problems. The purposes of this article is to provide The following discussion and examples focus on the a survey of the application of the bankruptcy avoidance application by Michigan bankruptcy of the avoidance powers to common real estate transactions for reference powers to Michigan real estate transactions. There are, use by the Michigan non-bankruptcy real estate practitioner. however, many situations where no Michigan bankruptcy Avoidance Powers Generally court decisions exist. Decisions from other jurisdictions have, therefore, been incorporated where Michigan The avoidance powers in the Bankruptcy Code are bankruptcy courts have not spoken, or where the result a blend of state creditors’ rights and federal bankruptcy law is otherwise instructive. Winter, 1989 -- Page 224 MICHIGAN REAL PROPERTY REVIEW

Fraudulent Transfers equivalent value and that the debtor was insolvent on the date of transfer or became insolvent as a result of the A. One Year Fraudulent Transfer Rule transfer.9

Section 548(a) of the Bankruptcy Code permits the Example 2 Trustee to avoid any transfer5 of an interest in property of the Debtor made within one year before the filing of the Facts: On July 1, 1987 Jones sells Whiteacre to bankruptcy petition if the transfer is fraudulent as defined. Miller for $50,000. Miller records his deed There are four principal species of fraudulent transfers on July 1, 1987. As a result of the sale, under Section 548(a), which correspond to Sections 4, 5, Jones is insolvent. The appraised value of 6 and 7 of the Uniform Fraudulent Conveyances Act Whiteacre on July 1, 1987 is $110,000. (UFCA). Jones files a Chapter 7 bankruptcy petition on June 30, 1988. Section 548(a)(I)6 permits a Trustee to set aside transfers made by a Debtor with actual intent to hinder, Result: The trustee may avoid the transfer. The delay or defraud existing or future creditors. Inadequate transfer was for less than a reasonable consideration and insolvency need not be shown. equivalent value and the transfer rendered However, these factors may bear on the issue of actual Jones, the Debtor, insolvent. Fraudulent intent, which, since Debtors rarely admit fraudulent intent, intent is irrelevant under Section 548(a)(2). must usually be proven by facts and circumstances. However, there may be some relief for Miller. If he purchased in good faith, Example 1: Section 548(c) gives Miller a lien against Whiteacre to the extent of value given to Facts: On May 1, 1987, for no consideration, Dr. the Debtor, here $50,000. Brown executes a quit-claim deed in favor of his wife transferring to her his interest This rule can be applied to avoid transfers involving in their Michigan residence held as tenants leasehold interests, by the entireties. At the time of the transfer Dr. Brown is on notice of a substantial Example 3 malpractice claim against him and he is uninsured. The malpractice claim is Facts: On January 1, 1980 XYZ Clothiers, inc. reduced to a judgment on March 19, 1988. enters into a 10 year lease with Green of On April 1, 1988 Dr. Brown flies a Chapter a store located in a shopping center owned 7 bankruptcy petition and a Trustee is by Green at a rental of $5.00 per square appointed. The Trustee moves, on behalf of foot. XYZ’s financial condition weakens joint creditors of Dr. Brown and his wife, under the ensuing years and under pressure to set aside the transfer under Section from Green, on January 1, 1986, when 548(a)(1). rental rates have increased to $12.00 per square foot, XYZ agrees to a lease Result: When a transfer between related parties is modification to permit Green to terminate without adequate consideration, a pre- the lease on 60 days notice and Green sumption of actual fraudulent intent arises agrees to look for a replacement tenant to and the burden of proof shifts from the help mitigate XYZ’s potential damages if Trustee to the Debtor. The Debtor must XYZ defaults. On January 1, 1986 XYZ is show that the transfer was not made with insolvent. On December 1, 1986 XYZ files actual intent to hinder, delay or defraud a chapter 11 bankruptcy petition. creditors. Due to the existence of the malpractice claim at the time of the Result: XYZ, as debtor-in-possession, has the transfer, Dr. Brown will have difficulty powers of a Trustee, and may avoid the meeting his burden of pr0of/ modification of the lease and reinstate the fixed 10 year term. XYZ’s interest in the Section 548(a)(2)8 permits when the Trustee can lease has a significant value because the prove that a transfer was made for less than reasonably current market rental rate is much higher MICHIGAN REAL PROPERTY REVIEW Winter, 1989 -- Page 225

than the lease rate. The grant of XYZ of the ABC Company is insolvent on October 1, 60-day termination right to Green consti- 1987. On April 1, 1988, an involuntary tuted a transfer of this lease interest. No Chapter 7 bankruptcy petition is filed consideration or value was given in return against ABC Company. by Green)° Result~ The trustee may avoid the transfer under Titles acquired at foreclosure sales may also be set Section 548(b). The elements of intent and aside under Section 548(a). In some jurisdictions (not less than reasonably equivalent value are Michigan) a regularly conducted, non-collusive foreclosure immaterial. The Section 548(c) lien (see sale may be set aside when a less than reasonably 11 Example 2) may not be available as it is equivalent value is paid. difficult to imagine that a general partner Example 4 can deny awareness of the purpose and effect of the transfer and qualify as a good Facts: First Bank holds a foreclosure sale by faith purchaser. advertisement of Commercial Building owned by ABC Partnership. The foreclo- B. State Fraudulent Conveyance Laws sure sale is regularly conducted and no collusion is involved. First Bank bids in its Section 544(b) of the Bankruptcy Code~s permits the debt, which is equal to 60% of the then fair trustee to step into the shoes of any unsecured creditor market value of Commerical Building. of the Debtor and use applicable state law, generally a First Bank is the high bidder and receives fraudulent conveyance law, to avoid a transfer by the and records a sheriffs deed. Eleven months Debtor of an interest in property. As noted above, Section later, and after expiration of the redemp- 548(a) is essentially a federal codification of the UFCA. tion period, ABC files a Chapter 11 bank- As a result, the elements of a section 544(b) action are ruptcy petition. ABC moves to set aside the often the same. However, Section 544(b) has one critically transfer. important advantage over Section 548(a), the absence of the requirement that the transfer occur withone one year Result: if the foreclosure was conducted in a state prior to the bankruptcy filing. Under Section 544(b), the where the Durrett rule’2 is followed, ABC may prevail since avoidance of a regularly trustee may avoid a transfer that occurred several years prior to bankruptcy, provided there exists at least one conducted, non-collusive foreclosure sale is permitted in Durrett jurisdictions where creditor who held an unsecured claim against the Debtor less than 70% of fair market value is paid. at the time of the transfer and who is still unpaid at the in Michigan, ABC would not prevail, unless time of the bankruptcy. Of course, the trustee cannot reach ABC could prove that the foreclosure sale back and avoid a transfer that is beyond the applicable was defective or collusive.~3 statute of limitations of-the state law which he is attempting to use to avoid the transfer. These examples highlight the most commonly found situations where real estate transactions can be affected by Example 6 the one year fraudulent transfer rule of Section 548(a).14 Facts: On July 1, 1984 Smith transfers Michigan Section 548(b) contains a special rule for transfers by real estate (Blackacre) to Jones. The partnerships to general partners within one year prior to transfer is for 60% of the appraised value the bankruptcy filing. The only other requirement is that of Blackacre and Smith becomes insolvent of insolvency, either at the time or as a result of the transfer. as a result of the transfer. On July 1, 1988 Example 5 Smith files a Chapter 7 bankruptcy peti- tion. Smith’s bankruptcy Trustee immedi- Facts: On October 1, 1987 ABC Company, a atelyfiles a complaint to avoid the transfer Michigan general partnership, sells and recover Biackacre for Smith’s bank- Whiteacre to Davis, a general partner of ruptcy estate. At least one of Smith’s ABC Company, for $75,000. The value of creditors as of July 1, 1984 is still unpaid Whiteacre on October 1, 1987 is $75,000. as of the date of bankruptcy. Winter, 1989 -- Page 226 MICHIGAN REAL PROPERTY REVIEW

Result: Under Section 544(b), the Trustee may use Example 8 the Michigan UFCA’~ to avoid the transfer. The transfer was for less than fair consider- Facts: Jones purchased a condominium unit from ation and rendered Smith insolvent. the Debtor prepetition on a Thursday. Jones took possession of the property Other Voidable Transfers immediately. On the following Monday, Debtor filed a Chapter 11 bankruptcy A. The Trustee As a Hypothetical petition. Due to a delay in obtaining a Bona Fide Purchaser discharge of a tax lien, the closing agent Section 544(a)(3)~7 clothes the Trustee with the power did not record Jones’ warranty deed until of a hypothetical bona fide purchaser of a Debtor’s r~l Wednesday. The Trustee moves to avoid property who is deemed to have a perfected interest in such Jones’ interest by asserting the strong arm property as of the date the bankruptcy case is commenced. power of Section 544(a)(3). This power, referred to as the "strong arm" power, ail6ws a Trustee to avoid unrecorded or undisclosed interests Result: Jones maintained open possession of the whenever, under state law, a bona fide purchaser would property from the date of purchase through prevail over the interest holder. the date of filing of the bankruptcy peti- tion. Since open possession constitutes It is clear that proper recording of an interest in real constructive notice of Jones’ interest in the estate under state law provides constructive or imputed property, the Trustee could not avoid the knowledge of the interest to a bona fide purchaser. The transfer to Jones under Section 544(a)(3).2° Trustee is subject to the same rule, thereby precluding application of the Section 544(a)(3) strong arm clause. Property division provisions in divorce judgments Example 7 often grant rights to one former spouse in real property retained by or transferred to the other former spouse. When Facts: Brown owns a residence in fee~ White files divorce judgments are not recorded, Trustees have sought a lis pendens against Brown’s residence. to avoid these interests in real estate using the strong arm Brown then files a bankruptcy petition. The power. Trustee moves to avoid the lis pendens using Section 544(a)(3). Example 9 Result: The Trustee may not avoid the interest of Mr. and Mrs. Dodd divorce. The divorce White in the residence. Although Section Facts: judgment grants to Mrs. Dodd one-half 544(a)(3) provides that a Trustee is a bona (1/2) of the net sales proceeds of the fide purchaser of real property "without lllinios residence owned in fee by Mr. regard to any knowledge of the trustee or Dodd. The divorce judgment is not re- any creditor; this does not override provi- corded. Mr. Dodd files a Chapter 7 bank- sions of state law which provide that a ruptcy petition. The Trustee moves to set Trustee will be held to have imputed knowledge of a competing interest in the aside Mrs. Dodd’s interest in the residence under Section property - here, a lis pendens filed in connection with a lawsuit.18 Result: The divorce judgment gave Mrs. Dodd an In addition, Section 544(a)(3) does not override equitable ownership interest in the resi- provisions of state law which impute notice of claims to denc~ Only the remaining one-half (1/2) real estate through facts which are legally sufficient to put interest in the net sales proceeds passed a purcl~aser upon inquiry.’9 Some courts, including a into Mr. Dodd’s bankruptcy estate, along Michigan bankruptcy court, have held that open posses- with legal title to the residence. The Sec- sion of real property, by a purchaser whose interest is un- tion 544(a)(3) strong arm power does not recorded, prevents a Trustee from avoiding the transfer to permit the Trustee to benefit from property the purchaser with the Section ~t4(a) (3) strong arm power. which the Debtor does not own.2~ MICHIGAN REAL PROPERTY REVIEW Winter, 1989 -- Page 227

B. Post-petition Transactions Example 11

Section 549(a)(I)22 of the Bankruptcy Code Fact: Sheffield files a Chapter 7 bankruptcy authorizes a Trustee to avoid transfers of property that occur petition. No notice is recorded by the after commencement of the bankruptcy case. Section Trustee. Green then purchases Farm from 549(c)23 carves out an exception to this rule for a good Sheffield at a price 20~; below fair market faith purchaser who (I) is without knowledge of the value. Green has no knowledge of the Shef- commencement of the bankruptcy case, (2) pays present field bankruptcy. Green records his deed. fair equivalent value for the property, and (3) perfects his The Trustee moves to set aside the pur- or her title so as to defeat a subsequent bona fide purchaser chase of the Farm. before a notice or copy of the bankruptcy petition is filed with the appropriate authority. Result: The sale will be set aside. Green failed to qualify for the Section 549(c) exception The Trustee can, and is now required to, protect his because he did not pay "present fair right to exercise this avoidance power by filing a notice or equivalent value" for Farm.26 However, copy of the bankruptcy petition with the office where real Green has a lien against Farm for the value estate transfers are perfected by means of recording, in given. accordance with Bankruptcy Rule 2015(a)(5).~4 By so filing, the Trustee notifies creditors, and other potential third Courts have differed in their assessment of what party purchasers, of the commencement of the bankruptcy qualifies as "payment of fair equivalent value" by a good case and interrupts any good faith purchaser’s attempt to faith purchaser. One Michigan bankrupty court has held perfect title. In Michigan, the Trustee protects his interest that satisfaction of prior indebtedness does not qualify as by filing a notice of copy of the bankruptcy petition with payment of fair equivalent value for the property. the register of deeds in each county where real estate in which the debtor has an interest is located.~ Example 12

Example 10 Facts: Bank commenced foreclosure of Michigan real estate by advertisement. The night Facts: Maxwell, a Kent County resident, filed a before the scheduled foreclosure sale, Chapter 13 bankruptcy petition. The mortgagor Blake informed Bank that he Trustee duly recorded a notice of the intended to file a bankruptcy petition the bankruptcy in Kent County. Maxwell lived morning of the foreclosure sale. Bank in a rented apartment, but owned Farmland nevertheless proceeded to conduct the in Ottawa County which was not disclosed foreclosure sale, bid in its debt and was the in his bankruptcy petition. Maxwell agreed high bidder. Bank recorded the sheriff’s to sell Farmland to Newman. Newman deed one hour after Blake filed his Chapter searched the Ottawa and Kent County real 11 bankruptcy petition. estate records, finding no notice recorded in Ottawa County and the recorded notice Result: The trustee will avoid the post-petition. in Kent County. Newman completed the transfer under Secion 549(a). Bank did not purchase and duly recorded his deed in qualify for the Section I~49(c) exception. Ottawa County. The Trustee moved to set Although Bank was a "good faith purchaser aside the conveyance to Newman under without knowledge of the commencement Section $49(a)(1). of the case," Bank did not pay "present fair equivalent value" for the property because Result~ The Trustee may avoid the sale. Although it did not actually pay money at the fore- the Trustee failed to record, in Ottawa closure sale; it merely bid in the amount County, Newman purchased Farmland with of the indebtedness owing by Debtor Blake knowledge of Maxweil’s bankruptcy as a on the mortgage. Satisfaction of ante- result of the Kent County real estate cedent indebtedness does not qualify as search. Also, since Newman had know- "present fair equivalent value;’ and ledge he has no lien upon Farmland for the foreclosing mortgages are not the intended value given to Maxwell. beneficiaries of Section I~49(c).2’ Winter, 1989 -- Page 228 MICHIGAN REAL PROPERTY REVIEW

Section 549 and Bankruptcy Rule 2015(a)(5) protect in property that is preferential as defined.59 Section 547(e) the estate from fraudulent post-petition transfers and provides specific rules for transfers of real property in the provide potential third party purchasers with notice of a context of the avoidable preference.3° The Trustee may Trustee’s interest. However, there is no established pro- avoid a transfer of real property from the Debtor which is cedure to give record notice when the jurisdiction of the not perfected under state law as against bona fide bankruptcy court is terminated.2a Title problems may purchasers from the debtor (assuming the other develop years later when the former Debtor attempts to requirements of a Section 547 preference are met31). sell his real property. Generally, any transfer purporting to convey an Example 13 interest in or lien upon real property must be recorded within a specified time period after execution. Facts: Dunham owns Residence located in Barry County. He files a Chapter 7 bankruptcy Example 14 petition on April 1, 1989. The Trustee duly records a notice the Dunham bankrup~tcy Facts: Brown purchased Blackacre from Abbott at the Barry County Register of Deeds on for $10,000. At closing, Brown paid April 20, 1989. The Trustee issues of $10,000 cash and received a warrenty deed Notice of Abandonment on June 1, 1989 to Biackacre. Brown recorded the deed 12 indicating that the interest of the Trustee days later. Abbott filed a bankruptcy peti- in Residence is abandoned. The Notice of tion 60 days after recording. Abbott’s Abandonment does not contain a legal bankruptcy trustee filed a complaint to description of Residence- No objections to avoid the transfer and recover the real the proposed abandonment are filed and estate from Brown. an Order of Abandonment is entered. On August 1, 1989 Dunham’s Chapter 7 dis- Result: Brown failed to record his deed within the charge is entered and his Chapter 7 case 10 day period provided in Section 547. This is closed, in 1995 Dunham attempts to sell delayed the effective date of the transfer Residence. A title commitment provided to until the date of recording. This converted the purchaser discloses the April 20, 1989 the transaction from a contemporaneous notice of bankruptcy and requires the re- exchange (which is a complete defense to cording of a satisfactory order of the Bank- a preference action) to a credit transaction. ruptcy Court terminating the Trustee’s The deed recording 12 days after the cash interest in Residence. payment is a transfer in satisfaction of an antecedent debt within 90 days of bank- Result: The Order of Abandonment does not contain a legal description of Residence, ruptcy. Assuming all other preference re- quirements are met,32 the transfer may be nor is It readily obtainable in certified form 3~ because Dunham’s Bankruptcy Court file avoided. is now in storage in Chicag~ If Dunham or Preferential transfers of real property can also occur his attorney have retained a photocopy of when, within 90 days prior to bankruptcy, the Debtor gives the Order of Abandonment, It should be recorded with an affidavit containing a a mortgage on real property to secure a past due obligation. legal description of Residence and stating The giving of a mortgage is a "transfer" within the meaning that the real property described in the of Section 547. Order is the property legally described in Example 15 the affidavit. This will give record notice of the abandonment with a legal description Facts: Crown owes $20,000 to Evans. This debt and should be acceptable to a title insur- is past due. Crown gives Evans a mortgage ance underwriter. on real estate owned by Crown to secure C. Section 547 Preferences the debt. Crown files bankruptcy 85 days after the mortgage is recorded. Crown’s Under Section 547 of the Bankruptcy Code, the bankruptcy Trustee files a complaint to Trustee may avoid the transfer of an interest of the Debtor avoid the mortgage under Section 547. MICHIGAN REAL PROPERTY REVIEW Fall, 1989 -- Page 229

Result: The transfer (the mortgage) was given for 3. The debtor is the person (individual, partnership, an antecedent debt. Although recorded, corporation) concerning which a case under the the transfer was made within 90 days of Bankruptcy Code has been commenced, and shall be bankruptcy. Assuming all other preference referred to in this article as the Debtor. requirements are met, the mortgage may 4. The Trustee has additional powers to recover property for be set aside. the bankruptcy estate, including turnover powers under Section 542 and 543 and the power to avoid statutory Conclusion liens under Section 545. The application of these powers to real estate transactions is less common. However, the ability of a bankruptcy Trustee to impact real estate trans- The preceding examples demonstrate the risks the actions with his varied powers should be regarded by the Bankruptcy Code presents for purchasers and others taking cautious practitioner as virtually unlimited. interests in real property, The real estate practitioner should keep these risks in mind when representing clients in real A "transfer" under the Bankruptcy Code means every estate transactions. In particular, opinions should be careful mode, direct or indirect, absolute or conditionally, to exclude the effects of applicable bankruptcy law, voluntary or involuntary, of disposing of or parting with documents should be recorded immediately and bank- property or with an interest in property, including reten- ruptcy counsel should be freely consulted. tion of title as a security interest and foreclosure of the debtor’s equity of redemption. 11 U.S.C. §101(50). The underlined phrase was added by The Bankruptcy FOOTNOTES Amendment and Federal Judgeship Act of 1984 (enacted July 10, 1984 as Pub.L. 98-353) as part of an unsuccessful *Jacqueline K. Vestevich is an associate with Howard & attempt by Congress to solve the Durrett/Madrid problem. See footnote 11, infra. Howard Attorneys, P.C. of Bloomfield Hills, Kalamazoo and Lansing, and specializes in the practice of commercial (a) The trustee may avoid any transfer of an interest and bankruptcy litigation, financial institutions and trust of the debtor in property, or any obligation incurred by law. A 1986 graduate of Wayne State University, she is the debtor, that was made or incurred on or within one a member of the American Bar Association and the State year before the date of the filing of the petition, if the debtor Bar of Michigan. She is an Adjunct Professor teaching voluntarily or unvoluntarily- Business Law at Kalamazoo Valley Community College. (1) made such transfer or incurred such obliga- tion with actual intent to hinder, delay, or defraud any Robert D. Mollhagen is a shareholder with Howard & entity to which the debtor was or became, on or after Howard Attorneys, RC. and specializes in bankruptcy, real the date that such transfer was made or such obliga- estate and tax law. A 1977 graduate of the Detroit College tion was incurred, indebted; or . . . 11 U.S.C. of Law, he is chairman of the Real Property Section’s §548(a) (I). Bankruptcy, Debtor/Creditor Rights Committee and a The Debtor’s interest in entireties property is property of member of the Section’s Land Title Standards Com- the bankruptcy estate under Section 541. In re Trickett, mittee. He is a Certified Public Accountant and an 14 B.R. 85 (Bankr. W.D. Mich. 1981), affirmed in an Adjunct Professor in the Masters of Science in Taxation unreported decision Case No. 81-379, U.S. District Court, program at Grand Valley State University. Western District of Michigan, May 24, 1982. The Debtor’s interest in that portion of entireties property reachable by 1. Bankruptcy Reform Act of 1978, 11 U.S.C. Section joint creditors is not exempt. In re Matter of Grosslight, 101-1330 ("Bankruptcy Code"). The Bankruptcy Code 757 E 2d 773 (6th Cir. 1985). replaced the Bankrupty Act of 1989, 11 U.S.C. Section (a) Trustee may avoid any transfer of an interest of 1-687 (repealed 1979) ("Bankruptcy Act"). Section references are to the Bankruptcy Code unless otherwise the debtor in property, or any obligation incurred by the debtor, that was made or incurred on or within one year indicated. before the date of the filing of the petition, if the debtor voluntarily or involuntarily- 2. The trustee in bankruptc~ cases includes the trustee appointed by the Bankruptcy Court in cases under Chapters 7, 11, 12 and 13 and the debtor-in-possession under Chapter 11, and shall be referred to in this article (2)(A) received less than a reasonably equivalent as the Trustee. value in exchange for such transfer or obligation; and Winter, 1989 -- Page 230 MICHIGAN REAL PROPERTY REVIEW

(B)(i) was insolvent on the date that such transfer Detling, In re Winshall Settlor’s Trust: The Sixth was made or such obligation was incurred, or became Circuit’s Approach To Reasonably Equivalent insolvent as a result of such transfer or obligation; Value Under 11 U.S.C. §548, 19 Toledo L.R. 409 (1988), suggests that a case-by-case approach be used. (ii) was engaged in business or a transaction, or was See also In re Bundles, 856 F. 2d 815 (7th Cir. 1988), about to engage in business or a transaction, for which and a recent Eleventh Circuit decision (Walker v Little- any property remaining with the debtor was an ton (In re: Littleton) CA 11, No. 88-8728, 9/29/89) unreasonably small capital; or adopting the case-by-case analysis. (ii) intended to incur, or believed that the debtor 12. See Supra note 11. would incur, debts that would be beyond the debtor’s 13. See, e.g., Gottlieb v McArdle, 580 ESupp. 1523(E.D. ability to pay as such debts matured. 11 U.S.C. Mich. 1984). §548(a) (2). " 14. Section 548(a)(2) contains two additional provisions by While this provision borrows heavily from Section 4 of which the Trustee may avoid a transfer when less than the UFCA, there is no requirement that a creditor ~xist a reasonably equivalent value is received by the Debtor, at the time of the transfer. Under the Bankruptcy Code, where either (I) during or after the transfer the debtor since the Trustee acts for the benefit of all creditors of engages in a business or transaction when his remaining the estate, the avoidance power need not be limited to property constitutes an unreasonably small amount of benefit only those creditors existing at the time of the capital or (2) the debtor’s transfer is contemporaneous transfer. with an intent or belief that his subsequent creditors will go unpaid. 11 U.S.C. §548(a) (2). The application of these 10. See In re Fashion World, Inc., 44 B.R. 754 (Bankr, provisions to transfers of interests in real property are rare, D. Mass. 1984) and in re Edward Har~ey Co., 68 B.R. as evidenced by an absence of reported cases. 851 (Bankr, D. Mass. 1987}. See also Goodman, Avoidance of Lease Terminations as Fraudulent 15. (b) The Trustee may avoid any transfer of an interest of Transfers, 43 Bus. Lawyer 807 (May, 1988). the debtor in property or any obligation incurred by the debtor that is voidable under applicable law by a creditor 11. An unresolved split of authority presently exists among holding an unsecured claim that is allowable under several of the circuits. Circuits following the rule Section 502 of this title or that is not allowable only under established in Durrett v Washington National Insur- Section 502(e) of this title. 11 U.S.C. §544(b). ance Co, 621 F. 2d 201 (5th Cir. 1980) permit avoid- ance of regularly conducted, non-collusive foreclosure 16. MCL §566.14; MSA §26.884. sales when less than a reasonably equivalent value has been paid. Many courts have interpreted Durrett as 17. (a) The trustee shall have, as of the commencement of establishing a bright-line test that less than 70% of fair the case, and without regard to any knowledge of the market value is not reasonably equivalent value. Circuits trustee or of any creditor, the rights and powers of, or following the rule established in Lawyers Title Insur- may avoid any transfer of property of the debtor or any ance Corp. v Madrid, 725 1:.20 1197 (9th Cir. 1984) obligation incurred by the debtor that is voidable by- do not allow avoidance. The Sixth Circuit has addressed (3) a bona fide purchaser of real property, other the issue in The Matter of Winshall Settlor’s Trust, than fixtures, from the debtor, against whom applicable 758 F.2d 1136 (6th Cir. 1985), holding that the law permits such transfer to be perfected, that obtains fraudulent conveyance law of the state should be the the status of a bona fide purchaser and has perfected bench mark for reasonable equivalence under Section such transfer at the time of commencement of the case, 548(a) (2) for purposes of foreclosure sales and that under whether or not such a purchaser exists. 11 U.S.C. Michigan law inadequacy of price alone is insufficient. §544(a)(3). One Michigan bankruptcy court has followed Winshall. Robbins v Lltchln (in re O’Connor), Case No. HT 18. In re: Gurs, 27 B.R. 163 (9th Cir. BAP 1983). 82-03788, Adv. Proc. No. 84-355 (Bankr. W.D. Mich. 1986). 19. The Section 544(a) (3) hypothetical bona fide purchaser has been defined as follows: The conflict between Durrett and Madrid also involves. A person who at the instant the petition is filed the issue of whether a foreclosure sale is a transfer or an involuntary conveyance triggered by the mortgagor’s purchases; default. See Strote, Mortgage Foreclosure Sales As (I) from the debtor; Fraudulent Conveyances, 13 Michigan Real Property Review 1, page 8 (1986). (2) for value; MICHIGAN REAL PROPERTY REVIEW Winter, 1989 -- Page 231

(3) in good faith; given, unless a copy or notice of the petition was so filed before such transfer was so filed before such transfer was (4) without actual knowledge of any defect or so perfected. 11 U.S.C. §549(c). limitation in title. (5) every interest in real property the debtor could 24. Bankruptcy Rule 2015(a)(5) provides: "(a) Trustee or have purported to convey without the terms of the Debtor in Possession. A trustee or debtor in possession conveyancing instrument itself evidencing irregularity; shall... (5) in every county in which real property of the debtor is located file a notice of or a copy of the (6) by an instrument that adheres to all formal petition, without schedules, in the office where a transfer requisites usually and regulary filed in the relevant of real property may be recorded to perfect such transfer; jurisdiction (e.g. that the conveyance is in writing and is acknowledged); and (7) who as of the moment of purchase, takes all This requirement was added to the Rule as part of the unilateral steps possible under relevant non- 1987 Amendments effective August 1, 1987, to prevent bankruptcy law to perfect the conveyance (e.g. abuses by Debtors who, without knowledge of the Trustee recording). or the Bankruptcy Court, dispose of property after filing bankruptcy and pocket the proceeds. Advisory In re: Guts, supra, at 165. Committee Notes to 1987 Amendments. 20. Robbins v Lenz (In re Perrin’s Marine Sales, Inc.) 63 B.R. 4 (Bankr. W.D. Mich. 1985); see also Mc- Proposed amendments to the Bankruptcy Rules would Cannon v Marston, 567 E2d 13 (3rd Cir. 1982). change Bankruptcy Rule 2015(a)(5) by making the recording of the notice or copy of the petition by the 21. in re: Richardson, 17 C.B.C. 443 (Bankr. C.D. Ill Trustee optional. 1987). The Illinois Bankruptcy Court also rested its decision on the Illinois rule of law that charges a pur- 25. Michigan bankruptcy practitioners indicate that the chaser of land with constructive notice of matters affecting required notice is: (I) generally recorded in Chapter 11 title to land which appear in the probate, circuit and (corporation, partnership and individual debtor county courts for the county in which the land is situated. reorganization) cases, and (2) not generally recorded in Michigan has no such rule. The authors believe that a Chapter 12 (family farmer reorganization) and Chapter Michigan Bankruptcy Court could therefore reach a 13 (wage earner and certain individual debtor) cases. different result. Approximately 95% or more of all Chapter 7 (liquida- If the divorce judgment grants a lien in favor of one tion) cases are "no asset cases" and, of the remaining former spouse in real property retained by or transferred 5%, the Debtor’s non-exempt equity in a residence is the to the other former spouse, then Section 544(a)(3) would most common asset. In these cases Trustees usually clearly apply and the lien should be avoided if the divorce record the required notice. A sample notice under judgment is not recorded. Section 549(c) of the Bankruptcy Code and Bankruptcy Rule 2015(a)(5) is set forth below: 22. (a) Except as provided in subsection (b) or (c) of this section, the trustee may avoid a transfer of property of NOTICE OF CHAPTER 11 the estate (1) that occurs after the commencement of the BANKRUPTCY PETITION case; ... 11 U.S.C. §549(a)(1). 23. (c) The trustee may not avoid under subsection (a) of On October 24, 1989, a Petition under Chapter II this section a transfer of real property to a good faith of the United States Bankruptcy Code was filed in the purchaser without knowledge of the commencement of United States Bankruptcy Court, Western District of the case and for present fair equivalent value unless a Michigan, Southern Division, at Grand Rapids, Michigan copy or notice of the petition was filed, where a transfer by ABC, Inc., a Michigan corporation. An Order for Relief of such real property may be recorded to perfect such under Chapter 11 was entered, and Party A, Inc. is a transfer, before such transfer is so perfected that a bona debtor-in-possession. The case number is GK-88-0000. fide purchaser of such property, against whom applicable This Notice is signed by the attorneys for the law permits such transfer to be perfected, could not debtor-in -possession. ~cquire an interest that is superior to the interest of such good faith purchaser. A good faith purchaser without Dated: October ~., 1989 knowledge of the commencement of the case and for less than present fair equivalent value has a lien on the property transferred to the extent of any present value Attorney of Record for ABC, Inc. Winter, 1989 -- Page 232 MICHIGAN REAL PROPERTY REVIEW

26. Present fair equivalent is defined as "either fair market (B) a transfer of a fixture or property other than real value, or something very close to it." In re: Powers, 88 property is perfected when a creditor on a simple con- B.R. 294, 297 (Bankr. D. Nevada, 1988). Note that this tract cannot acquire a judicial lien that is superior to the test differs from the "reasonably equivalent value" interest of the transferee. standard under Section 548(a)(2), which in some foreclosure cases has been interpreted as 70% or more (2) For the purposes of this section, except as provided of fair market value. in paragraph (3) of this subsection, a transfer is made- 27. In re: Penfil, 40 B.R. 474 (ED Mich. 1984). (A) at the time such transfer takes effect between 28. Often the Debtor buys back his non-exempt equity in the the transferror and the transferee, if such transfer is real property from the Trustee, and the Trustee than aban- perfected at, or within 10 days after, such time; dons his interest in the real property. Seldom does the Bankruptcy Court’s Order of Abandonment includ~ a legal description, and there is no requirement that it be (B) at the time such transfer is perfected, if such recorded. transfer is perfected after such I0 days; or

A local rule has been proposed in the Western District (C) immediately before the date of the filing of the of Michigan Bankruptcy Court (Local Rule 19) providing petition, if such transfer is not perfected at the later of- that any filings initiating proceedings involving real property, any orders disposing of them, and Schedule B-1 must contain a full and complete legal description (i) the commencement of the case; or of the real property. (ii) 10 days after such transfer takes effect 29. A transfer is preferential when made (1) to or for the between the transferror and the transferee. benefit of a creditor; (2) for or on account of an antecedent debt; (3) while the Debtor was insolvent; (4) (3) For the purposes of this section, a transfer is not within 90 days prior to bankruptcy (one year for insider made until the debtor has acquired rights in the property creditors); (5) that enables the creditor to receive more transferred. than it would in a Chapter 7 case. See 11 U.S.C. §547(b). 30. (e)(1) For the purposes of this section- 31. Id. (A) a transfer of real property other than fixtures, but including the interest of a seller or purchaser under 32. Id. a contract for the sale of real property, is perfected when a bona fide purchaser of such property from the debtor 33. See In re Pitman, 843 E2d 235 (6th Cir. 1988), where against whom applicable law permits such transfer to be a delay in recording both deed and purchase money perfected cannot acquire an interest that is superior to mortgage for over one month was a contemporaneous the interest of the transferee; and exchange and, therefore, not avoidable. MICHIGAN REAL PROPERTY REVIEW Winter, 1989 -- Page 233

EMINENT DOMAIN LAW FOR THE GENERAL PRACTITIONER

by David W. Berry and Clara DeMatteis

The general practitioner does not often get involved Until April I, 1983, agencies still had the option to in expropriation cases. This article is intended to benefit commence actions under the State Agency Act or the those attorneys who have either never represented a victim Highway Quick Take Act, where appropriate. Utilities could commence actions under the Utilities Statute until April I, of this extraordinary exercise of sovereign power, or have 2 done so infrequently and are not familiar with recent 1985. However, the procedural provisions of all of those developments in the law. Although the nature of the acts have now been repealed, at the latest effective April expropriation (residential v business), and the facts of the 1, 1985, and now all expropriations are governed by the particular case dictate the attorney’s litigation and appraisal UCPA. strategy, this article discusses the procedures used in a "typical" expropriation case. The UCPA does not confer the power of eminent domain or enlarge the purpose for which that power may be exercised.3 It is strictly a procedural statute. The substan- Constitution and Statute tive authority for the exercise of the power of eminent domain remains in the State Agency Act,4 the Highway s A. Michigan Constitution 1963 Article X Section 2 Quick Take Act and other enabling acts. Actions com- requires that "private property shall not be taken for public menced under other acts before repeal, but pending at the use without just compensation therefore being first made time of repeal, are thereafter governed by the UCPA. This or secured in a manner prescribed by law." is particularly important in resolving the issues of attorney fees since the UCPA provides for reimbursement of attorney fees by the expropriating agency.6 The Michigan B. The Uniform Condemnation Procedures Act~, Court of Appeals resolved that issue in Michigan Depart- 1980 PA 87 directly repeals or otherwise supersedes all ment of Transportation v Biitmore Investment Co.7 procedural provisions of other expr6priation statutes with In Biltmore,8 the Court held that the UCPA applied, and a uniform procedure. Pursuant to MCL 213.75, MSA directed that the agency reimburse the owner for 8.265(25), all expropriations by public or private agencies reasonable attorney fees in accordance with the provisions must be commenced under the UCPA. of the UCPA. Winter, 1989 -- Page 234 MICHIGAN REAL PROPERTY REVIEW

C. Unless otherwise provided, all laws and court rules The act therefore defines property as nearly every generally applicable to civil actions apply to expropriation interest in anything that the law protects. If an interest is cases. ~ protected from private invasion, it would seem that the sovereign, or his delegates, must also respect it. If it must Dramatls Personae be destroyed or invaded in furtherance of some greater public purpose, compensation is due. Section 1(e) of the Uniform Condemnation Pro- cedures Act defines "owner" as: The Event "(e) ’Owner’ means a person, fiduciary, partnership, association, corporation or a governmental unit Section l(a) of the Uniform Condemnation Proce- or agency having an estate, title, or interest, dures Act provides: including beneficial, possessory, and security interest, in a property sought to be condemned:’ "(a) ’Acquire’ or ’take’ means to secure transfer of ownership of property to an agency by involun- Section 1(g) of the Uniform Condemnation Pro- tary expropriation." cedures Act provides: Section l(b) of the Uniform Condemnation Proce- ,,(g) ’Private agency’ means a person, partnership, dures Act provides: association, corporation, or entity, other than a public agency, authorized by law to condemn "(b) ’Acquisition’ or ’taking’ means the transfer of property:’ ownership of property to an agency by involun- tary expropriation:’ Section 1(i) of the Uniform Condemnation Procedures Act provides: Section 1(d) of the Uniform Condemnation Proce- dures Act provides: "(i) ’Public agency’ means a governmental unit, officer, or subdivision authorized by law to condemn property." "(d) ’Constructive taking’ or ’de facto taking’ means conduct, other than regularly established judicial It therefore appears that the statute is intended to proceedings, sufficient to constitute a taking of govern all exercises of the power of eminent domain within property within the meaning of section 2 of Michigan, regardless of the character of the expropriator, article 10 of the State Constitution of 1963/’ or of the nature of the claim of the injured party. The Typical Case The Res To properly represent an owner whose property is Section l(h) of the Uniform Condemnation Proce- being expropriated, the attorney must understand the dures Act defines "property" as: duties of the expropriating agency under the UCPA. The first step in evaluating the owner’s position is to determine "(h) ’Property’ means land, buildings, structures, whether or not the agency has complied with the require- tenements, hereditaments, easements, tangible ments of the statute. Some questions are: and intangible property, and property rights whether real, personal, or mixed, including fluid Has the agency properly identified the proper mineral and gas rights:’ parties? Section l(f) of the Uniform Condemnation Proce- dures Act defines "parcel" as: 2. Has the agency properly identified the "parcel"? ,,(f) ’Parcel’ means an identifiable unit of land, Has the agency properly identified the "pro- whether physically contiguous or not, having perty" being expropriated? sustantially common beneficial ownership, all or part of which is being acquired, and treated as Has the agency made a legally sufficient good separate for valuation purposes." faith written offer? MICHIGAN REAL PROPERTY REVIEW Winter, 1989 -- Page 235

5. Does the agency really need the property? the agency is entitled by law, and a declaration of taking signed by an authorized official. 14 A Declaration of Taking 6. Has the agency complied with all of the must also be filed with the Register of Deeds.Is statutory prerequisites to expropriation? When the agency files the complaint, the agency must Before filing an action, the agency is allowed to enter the deposit the estimated just compensation with an escrowee property for surveying, soil borings, environmental testing to be held for the benefit of the owners and disbursed upon and appraisal purposes.I° The owner is entitled to order of the court.16 It is usually at this time, after the owner reasonable notice of this inspection and is allowed to is served with the summons and complaint, that the owner accompany the appraiser during the inspection. retains counsel. However, it is often more beneficial to the owner if counsel is retained before the agency files its Before the agency can commence negotiations for the complaint. purchase of the property, the agency must establish the amount that it believes to be just compensation for the For example, ownership and title problems should be property and must submit a good faith written offer to the resolved before the agency files its complaint. The attorney owner. The amount of the offer must be at least the for a an owner should first determine whether to under- agency’s appraisal of just compensation for the property. take representation of the owner in the particular condem- nation case. After reviewing all of the pleadings filed by The agency must provide the owner or the owner’s attorney with either (I) an opportunity to review the written the agency, the attorney, with the assistance of a real estate appraisals, if appraisals have been obtained, or (2) a written and/or fixture appraiser, should evaluate the adequacy of memorandum setting forth the basis for the offer, if no the agency’s offer. Assuming that the agency’s offer is appraisal has been prepared." The Agency will establish inadequate, the attorney then prepares a retention letter and a fee agreement. Attorney fees are usually on a its estimate of just compensation, make an offer to the contingency basis, the prevailing standard rate being one- owners and other interested parties and negotiate for the third (1/3) of the difference between the original offer and purchase of the property,zz If the parties are unable to agree the ultimate award, which includes interest.~7 The attorney after a good faith written offer is made, the agency may file an action to expropriate the property. fee agreement should address costs for appraisal reports and expert witness fees, the scope of representation, Under the UCPA, the proper court and venue for an whether appeals are included and UCPA provisions con- expropriation action is the circuit court of the county in cerning potential reimbursement by the agency of which the property is located. If the property expropriated reasonable attorney fees and costs. is located in more than one county, the county in which an owner resides is given preference, but if no owner Once the attorney fee agreement is executed, and resides in any county, the agency may file in any county assuming the agency has filed its complaint and the owner where any part of the property is situated.~3 The UCPA does not wish to challenge the act of expropriation, as does not cover the situation where property and owners unnecessary, or because the agency has not fulfilled the are both located in two or more counties. Presumably, the jurisdictional requirements of the UCPA, the answer to the agency would have the choice of filing in any county where complaint is filed. All affirmative defenses should be raised part of the land is situated and at least one owner resides. at this time. For example, in a partial expropriation, the issue of whether the practical value and utility of the Complaint remainder is destroyed by the expropriation should be raised as an affirmative defense. The complaint asks the court to determine just com- pensation for the expropriation of the property. The Challenge to Necessity complaint must contain a statement of the purpose for which the property is expropriated, the name of each An owner who wishes to challenge the expropriation known owner, a statement setting forth a time within which of all or part of his property must file a motion within the motions for review must be filed, the amount of compen- time he has to answer the complaint. If the owner fails to sation which is being deposited, the persons to whom the timely file a motion challenging the expropriation, necessity amount will be paid if there is a default, the deposit and is conclusively presumed to exist, the right to have further escrow arrangements set up by the agency are in compli- review of the expropriation is barred, and the expropriation ance with the UCPA, a request for other relief to which is deemed lawful.18 Winter, 1989 -- Page 236 MICHIGAN REAL PROPERTY REVIEW

Under the UCPA, the challenge to the propriety of necessity is determined, the court must order the estimated the expropriation is addressed to the court regardless of just compensation paid to the owners of the property. If whether just compensation is determined by the court or the owners have differing interests, upon motion of any by a jury. There is no jury review of the propriety of the party, the court will apportion the estimated compensa- expropriation under the UCPA. The hearing is held within tion among the various claimants,z9 30 days after filing of the motion.19 Possession The court’s determination is a final judgment.2° However, unlike most final judgments, an order of the court Upon resolution of any challenge to the expropria- upholding the expropriation is appealable only by leave tion, and deposit of the estimated just compensation, the granted. Furthermore, the court of appeals cannot grant court will fix the time and terms for the surrender of posses- delayed leave to appeal, and the determination is not sion of the property to the agency. The court may enforce appealable as part of an appeal from a judgment of ~ust surrender by appropriate process. The court may require 21 compensation. On the other hand, a judgment striking surrender of possession after denial of a challenge to the down the expropriation is also a final judgment, aod is expropriation, even if an appeal is pending, if the agency appealable as a matter of right. Whether this consciously demonstrates a reasonable need.a° If a private agency lopsided statutory scheme will pass constitutional scrutiny obtains interim possession, the court may order the agency has not yet been decided. to file an indemnity bond to secure just compensation.3~ The owner may also file a motion for summary An interim possession order is not stayed by an appeal. disposition, to review necessity and to dismiss where the However, an agency is liable for damages caused by the agency has not fulfilled the jurisdictional requirements of possession if its right to possession is denied by the trial the UCPA. Where an expropriation statute establishes court or on appeal.~ The owner must repay all sums jurisdictional conditions precedent to the commencement advanced before obtaining entry of a final order setting of an action, the law mandates strict compliance with these aside determination of public necessity.3a requirements. 22 First Hearing This type of motion is most frequently filed in cases which involve business expropriations, where the agency When the complaint is filed, the court enters an order has not considered all of the elements of compensation fixing a date for a hearing. The date for hearing must be in establishing the amount which the agency believes to at least 21 days after the complaint is served. The order be just compensation and therefore has made a legally defi- must recite the names of the persons mentioned in the cient good faith offer to the owner. Michigan case law complaint as owners, describe the property expropriated recognizes the following elements of compensation, where z3 and state the purpose of the complaint. Normally, this order appropriate: business interruption avoidance damages, takes the form of an order to show cause.3’ On the date value of fixtures, machinery, equipment, other property of the hearing, the court normally enters the default of and inventory,2’ damage to remaining property,~5 value of ~5 those parties who have not responded to the complaint, or cost of moving inventory, and destruction of a going if sufficient time has passed, and determines when and on enterprise. ~7 what terms possession will transfer. Title Jury Demand; Division of Award If a motion to challenge the expropriation is not filed, title to the property vests in the agency as of the date of Either party may demand a jury trial on the issue of filing of the complaint. The right to just compensation vests just compensation. The jury is selected and governed by at the same time. If a motion to challenge the expropria- the rules normally applicable to juries in civil cases in circuit tion is filed, title to the property vests in the agency and court. The jury or court will award in its verdict just com- the right to just compensation vests in the owners when pensation for each parcel. After the verdict, on request of the motion is denied and any further right to appeal has any party, the court will divide the award among the terminated.2~ respective parties in interest, in accordance with the rights of parties as they appear in the pleadings or in accordance Payment of Estimated Just Compensation with evidence presented by the parties.36 The court may allow the jury, when it retires, to take with it notes and If no challenge to the expropriation is filed or if such exhibits.~7 Unless there is good cause shown to the con- a challenge is denied and the appeal time has expired, or trary, there must be a separate trial on the issue of just if the agency obtains an order for interim possession before compensation for each parcel.~8 MICHIGAN REAL PROPERTY REVIEW Winter, 1989 -- Page 237

Costs; Expert Witness Fees The Michigan Court of Appeals has held that the "ultimate award" includes interest but not witness fees.49 The principal costs incurred in a condemnation case It should be noted that interest on any increase in just are expert witness fees, primarily appraisers and compensation in excess of the agency’s original offer begins 39 to accrue upon surrender of possession of the property to engineers. Furthermore, taxable costs include not only s° the time the expert witness spends in court, but his prepara- the agency, For example, if the agency offers a landowner tion time.4° These costs are taxable even if the expert’s $40,000, and at trial it is established that the owner is ultimate report agrees with the agency’s report, since an entitled to base just compensation of $90,000, $I0,000 owner is not obligated to accept the agency’s conclusions in interest and $5,000 for costs, the increase in the ultimate on faith.4~ award is $60,000 -- the increased just compensation for the property ($50,000) plus interest ($10,000). Thus, the maximum reimbursement for attorney fees would be The UCPA continues the provisions of prior law $20,000. requiring the agency to pay for the owner’s expert witnesses. The agency must pay expert and ordinary The UCPA also provides that the agency must pay witnesses reasonable fees and compensation provided by reasonable attorney fees if the property owner defeats the law for similar services in ordinary civil actions, including expropriation,sl or if the agency discontinues the action 4~ the expenses for preparation and trial. Expert witness fees after possession is granted or title has vested.82 Obviously, are allowed for experts whose services were reasonably 43 since the taking was forestalled and there was no increase necessary to allow the owner to prepare for trial. This in just compensation, the attorney fee award is not limited is true regardless of who calls the witness and what the to the one-third (1/3) authorized for increases in just result of the trial is. compensation.

If the agency acquires the property without commen- The attorney fee provisions of the UCPA do not apply cing an action, such as through purchase, or abandons the to actions commenced before May I, 1980, and concluded attempt to acquire property after making the jurisdictional before repeal of the act under which the action was written offer, the agency must reimburse owners for started,sl If the court orders attorney fees paid by a certain reasonable expenses incurred in evaluating the offer, date and the condemnor fails to do so, interest on the preparing for trial or negotiating a settlement, if those attorney fees may accrue.5~ If the property owner success- expenses would have been awarded under the UCPA.44 fully challenges the agency’s right to expropriate the property or the legal sufficiency of the proceedings, the The owner has one year to file a claim for these agency must pay the owner the actual reasonable attorney fees and other expenses incurred in defending against the expenses after the property is acquired through negotia- 5s tion or the agency notifies the owner in writing by mail that improper attempted expropriation. it is abandoning its intention to acquire the property. The owner’s right to reimbursement may be enforced in any Discontinuance court having jurisdiction over claims for damages against the agency or in a court in which an action for expropria- The agency cannot discontinue the action after. tion of the property could have been filed.4s possession of the property is granted to the agency or after title vests in the agency. If the agency discontinues the action, it must pay the actual expenses, reasonable attorney Attorney Fees fees and actual damages to all of the parties affected by the discontinuance, as determined by the court,s~ Although most prior expropriation statutes provided for only nominal recovery of attorney fees,~ the UCPA Conclusion now provides for substantial reimbursement of attorney fees if the landowner either defeats the expropriation or obtains This article addresses only the basic law and pro- an award of just compensation in excess of the jurisdic- cedures involved in expropriation litigation. Although a tional offer.47 The UCPA requires the court to order reim- simple residential expropriation case can be handled by a bursement of reasonable attorney fees up to one-third (I/3) general practitioner, a more complex expropriation case of the difference between the "ultimate award" and the involving a taking of business property requires an agency’s written offer.~8 understanding of the different methods of valuation, Winter, 1989 -- Page 238 MICHIGAN REAL PROPERTY REVIEW

appraisal theories, negotiation and litigation strategies in 17. MDOT v DIMatteo, 136 Mich App 15; 355 NW2d 622 expropriation cases and knowledge of the business in- (1984); MDOT v Dennis, 133 Mich App 207; 349 NW2d volved. This subject is discussed in much greater detail in 261 (1984). Wade, ed, Michigan Law of Damages (ICLE 1979, 18. MCL 213.56(7); MSA 8.265(6)(7} supplement in process) ch 21, Proving The Value of Property, and Steingold & Etter, eds, Michigan 19. MCLA 213.56; MSA 8.265(6) Municipal Law (ICLE 1980, supp 1987) ch 13, Eminent 20. MCLA 213.56(5); MSA 8.265(6)(5) Domain. Readers with a need for more comprehensive treatment should refer to those works. 21. MCLA 213.56(6); MSA 8.265(6)(6) 22. Lookholder v SHC’r, 354 Mich 28; 91 NW2d 834 (1958); FOOTNOTES State Board of Education v Von 7ollen, 1 Mich App 147; 134 NW2d 828 (1965); In re Petition of Rogers, 243 Mich * David W. Berry is a shareholder at Butzel Long Gust Klein 517; 220 NW 808 (1928); SHC’r v Jones, 4 Mich App & Van Zile where he specializes in municipal law, emi~nent 420; 145 NW2d 231 (1966). domain and property tax appeals. Mr. Berry was admitted to practice in 1975. He is the 1988-89 Chairman of the 23. Detroit v Michael’s Prescriptions, 143 Mich App 808; 373 NW2d 219 (1985); Detroit v Hamtramck Com- Zoning and Land Use Committee of the Real Property munity Federal Credit Union, 146 Mich App 155; 379 Section of the State Bar of Michigan. NW2d 405 (1985); In re Grand Haven Highway, (Dake Corp.) 357 Mich 20; 97 NW2d 748 (1958); in re Parksite Clara DeMatteis Mager is an associate at Butzel Long Gust on Private Claim 16, 247 Mich 1; 225 NW 498 (1929). Klein & Van Zile where she specializes in eminent domain, property tax appeal and business immigration. She is a 24, Goodwill Community Chapel Church, 127 Mich App 255, 338 NW2d 204 (1983); Algonac v Robbins, 69 Mich member of the Zoning and Land Use Committee of the App 409, 245 NW2d 68 (1976); SHC’r v Miller, 5 Mich Real Property Section of the State Bar of Michigan and App 591; 147 NW2d 424 (1967). the American Immigration Lawyers Association. 25. SHC’r v Walma, 369 Mich 687; 120 NW2d 833 (1963); I. MCL 213.51 et seq; MSA 8.265(1) et seq Allegan v Vonasek, 259 Mich 310; 243 NW 14 (1932); SHC’r v Snell, 8 Mlch App 299; 154 NW2d 631 (1967); 2. MCL 213.76, MSA 8.265(26) and MCL 213.77, MSA Baetjer v United States, 143 F2d 391 fist Cir.), cert den, 8.265(27) 323 US 772, 65 S Ct 131 (194}. 3. MCL 213.52, MSA 78.265(2) 26. Goodwill, supra; Algonac, suora; Miller, supra. 4. MCL 213.21 et seq; MSA 8.11 et seq 27. Michael’s Prescriptions, supra; In re Jeffl’ies Home Housing Project, 306 Mich 638; 11 NW2d 272 (1943); 5. MCL 213.361 et seq; MSA 8.261(1) et seq in re Lansing Urban Renewal, 67 Mich App 158; 242 NW2d 51 (1976); iv den 397 Mich 828 (1976); Grand 6. MCL 213.66(2)(3); MSA 8,265(16)(2)(3) Rapids & Indiana Railroad Company v Weiden, 70 7. 156 Mich App 768; 401 NW2d 922 (1986) Mich 390; 38 NW 294 (1888); Ansonla Company v Detroit, 280 Mich 539; 273 NW 798 (1937). 8. [d. at 778 28. MCL 213.57; MSA 8.265(7) 9. MCL 213.52(1); MSA 8.265(2)(1) 29. MCL 213.58; MSA 8.265(8) 10. MCL 213.54(2); MSA 8,265(4)(2) 30. MCL 213.59(1); MSA 8.265(9)(1) 11. MCLA 213,55; MSA 8.265(5) 31. MCL 213.59(2);MSA 8.265(9)(2) 12. MCLA 213.55(1); MSA 8.265 (5)(I) 32. MCL 213.59(3);MSA 8.265(9}(3) 13. MCkA 213.55(1); MSA 8.265(5)(1) 33. MCL 213.59(4);MSA 8.265(9)(.4) 14. MCLA 213.55(2); MSA 8.265 (5)(2) 34. MCL 213.60; MSA 8.265(10) 15. MCL 213.55(2)(e); MSA 8.265 (5){2)(e) 35. MCL 213.61; MSA 8.265(II) 16. MCL 213.55(3); MSA 8.265(5)(3) 36. MCL 213.63; MSA 8.265(13) MICHIGAN REAL PROPERTY REVIEW Winter, 1989 -- Page 239

37. MCL 213.64; MSA 8.265(14) 47. MCL 213.66(3); MSA 8.265(16)(3) 38. MCL 213.62(2); MSA 8.265(12)(2) 48. MCL 213.66(2); MSA 8.265(16)(2); MCLA 213.66(3), MSA 8.265(16) (3) 39. SHC’r v Goodman, 394 Mich 311; 84 NW2d 507 (1957) DiMatteo, supra; Dennis, supra 40. SHC’r v Rowe, 372 Mich 341; 126 NW2d 702 (1964) 49. 41. SHC v Cousineau Gravel, Inc., 58 Mich App 405; 228 50. MCL 213.65; MSA 8.265(15) NW2d 856 (1975) 51. MCL 213.66(2); MSA 8.265(16)(2) 42. MCL 213.66(1); MSA 8.265 (16)(1) 52. MCL 213.67; MSA 8.265(17) 43. Detroit v Lufran C(~, 159 Mich App 62; 406 NW2d 235 (1987) 53. Biltmore Investment Company, Inc., supra 44. MCL 213.66; MSA 8.265(16) 54. Detroit v RBS, Inc., 149 Mich App 49; 386 NW2d 167 (1986) 45. MCL 213.68; MSA 8.265(18) 55. MCL 213.66(2): MSA 8.265(16)(2) 46. Canton Township v Kaufman, 87 Mich App 719, 276 NW2d 505 (1979) 56. bICL 213.67~ blSA 8.265(17) MICHIGAN REAL PROPERTY REVIEW Winter, 1989 -- Page 241

AN ANALYSIS OF A "PHENOMENON - SITE CONDOMINIUM PROJECTS

by Mark F. Makower and Jeffery R. Jones"

The 1978 enactment of the Michigan Condominiums functional or physical attributes. In practice, those projects dramatically increased flexibility in the type of condo- in which the units are not shown as being enclosed within minium developments in Michigan. Prior to the Condo- a structure (and not otherwise noted as a marina condo- minium Act, a condominium unit (pursuant to the 1963 minium unit, campsite condominium unit, etc.) have been Horizontal Real Property Act3) was required to be defined referred to as "site condominium projects". Within this loose in terms of air space enclosed within a structure. Further, definition have been many variations of the unit definitions, the Horizontal Real Property Act discussed "apartment which have been described as "building envelopes", "build- units". However, the Condominium Act now encompasses able area", "cubes" and/or "glass boxes" located on a parcel marina condominium units, campsite condominium units, of land, as well as certain instances where the unit itself mobile home condominium units and has been used for includes structures, land or a combination of these items. numerous other "non-enclosed" unit areas comprising For purposes of this analysis, the actual description of the commercial developments and even parking areas sold as unit loses significance once it is established that the condo-" condominium units. Under the Condominium Act, the minium project qualifies as a condominium pursuant to the attorney drafting a master deed has broad definitional Condominium Act. latitude in describing and establishing the condominium units within each project. Recently, substantial questions have arisen over one particular version of a site condominium. This involves that Out of this fertile breeding ground has emerged a form version which, based solely on its physical attributes, might of condominium development currently being termed "site also be developed in accordance with the provisions of the condominium". In response to the term, many individuals Subdivision Control Act of 1967.4 In recent years, these have borrowed from Justice Stewart’s fabled "But I know types of developments have become more .numerous and it when I see it" remark. Yet, due to the definitional latitude popular. With these developments, attention has been afforded the master deed draftsman, it is effectively impos- focused on whether such~developments constitute an illegal sible to generalize or comprehensively define a site condo- circumvention of the provisions of the Subdivision Control minium in terms of uses, configurations, or any other Act, or whether such condominium developments are a Winter, 1989 -- Page 242 MICHIGAN REAL PROPERTY REVIEW

legal alternative form of real estate development, outside Over the years, such "platting" statutes have evolved the provisions of the Subdivision Control Act. This article from such basic administrative tools to comprehensive will discuss the nature of these questions considering the statutes encompassing land planning, regulations designed statutes involved, the recent opinion of the Attorney to control growth and development. The preamble to the General and other applicable principles of law. Subdivision Control Act indicates that it is designed to meet these expanded purposes, and reads as follows: SITE CONDOMINIUM AS ALTERNATIVE AN ACT to regulate the subdivision of land; to Many developers prefer the site condominium project promote the public health, safety and general alternative because of perceived substantial savings in welfare; to further the orderly layout and use of "development time". A traditional subdivision development land; to require that the land be suitable for under the Subdivision Control Act can take anywhere from building sites and public improvements, and that one to two years for the approval process to be completed. there be adequate drainage thereof; to provide A site condominium project may be recorded, with all for property ingress and egress to lots; to promote appropriate approvals obtained, often within a period of proper surveying and monumenting of land sub- months. Further, recordation of a plat (under the Sub- divided and conveyed by accurate legal descrip- division Control Act) requires the prior completion of all tions; to provide for the approvals to be obtained utilities, roads and improvements throughout the sub- by subdividers prior to the recording and filing division before a lot and/or unit in such subdivision may of plats; to provide for the establishment of be conveyed. The condominium approach allows the special assessment districts and for the impost- development in phases over a period of potentially six tion of special assessments to defray the cost of years, with the necessity of completing only those utilities, the operation and maintenance of retention roads and improvements which the developer has declared basins for land within all or a part of the final plat; and shown in his master deed for the particular phase of to establish the procedure for vacating, correct- the development in which a unit is being conveyed. The ing and revising plats; to control residential ability to amend such a development plan based on building development within floodplain areas; to economic necessities and/or business dictates is far greater provide for reserving easements for utilities in with a condominium project than with a recorded sub- vacated streets and alleys; to provide for the filing division plat prepared pursuant to the Subdivision Control of amended plats; to provide for the making of Act. The appeal of a site condominium project to a assessors’ plats; to provide penalties for the viola- developer considering the potential savings in time and tion of the provisions of this act; and to repeal development costs is obvious. certain acts and parts of acts. Many local governmental units seem skeptical at best The provisions of the statute follow the intent ex- concerning the legal viability of site condominium projects. pressed in the preamble. Detailed provisions exist setting Often, the attempt to establish a site condominium project forth the technical and content requirements for prepara- is seen as a circumvention of the "Subdivision Control Act". tion of preliminary and final plats. Provisions also are set The authors believe this skepticism to be unfounded, as forth requiring submission of said plats to various local the remainder of the article will illustrate. governmental agencies and utility providers for their approval, and further setting the relevant time periods in SUBDIVISION CONTROL ACT which such agencies must approve or reject such plats. Requirements are stated as to streets, roads, alleys, The Subdivision Control Act of 1967 was enacted to numbering and description of lots and outlots, utility and supercede and replace the Plat Act of 19295. The Plat Act other easements, improvements, floodplain development, had been rendered obsolete as a modern day mechanism wetland protection, drainage, and sewer and storm water for regulating land use and planning. The old Plat Act and facilities. Depending on the location of the development other statutes of its genre were historically formulated as and its proximity to or connection with bodies of water, administrative tools and/or basic attempts to regulate the highways and other public roads, approvals must be recording and development of lands and subdivisions. obtained from some or all of various agencies, including Such administrative tools were deemed expedient to assist the municipality involved, the drain commissioner, state in eliminating boundary disputes, facilitating conveyances highway department, department of natural resources, and simplifying assessments of real property. health department, road commission, public utilities, and MICHIGAN REAL PROPERTY REVIEW Winter, 1989 -- Page 243

the county plat board. Detailed instructions, "flow charts" The condominium unit is that portion of the project and "guidelines" showing the requirements for compliance intended for separate ownership and use,8 as described in with the Subdivision Control Act can literally exceed 50 the master deed, regardless of the type of use. While pro- typewritten pages. viding extensive latitude to the draftsman in defining a condominium unit in the master deed, the Condominium Because the Subdivision Control Act is largely admin- Act contains extensive provisions for protection of con- istrative in nature, there are no commonly perceived sumers, as well as numerous requirements for preparation "consumer protection" provisions built into the act other of condominium documents. than those which follow naturally from its operation, such as improving the degree of certainty as to what a purchaser When comparing the Condominium Act to the histor- is actually buying. Condominium statutes are of a different ical purposes of "platting" statutes, it can be effectively nature than "platting" statutes. Condominium statutes also argued that the legislature included provisions which contain provisions substantially parallel in nature to those accomplished the same purposes by way of a separate, of "platting" statutes (i.e., technical requirements such as parallel system¯ Through extensive technical requirements those stated above); however, the main purpose of condo- for what must be included in a master deed, condominium minium statutes, is to provide for the establishment of bylaws and the condominium subdivision plan, boundary condominium projects, and in so doing the administrative disputes are unlikely, and conveyances are handled easily provisions regulating the form of ownership are included by reference to a unit designation within a recorded master as a part of the comprehensive statutory scheme. deed and subdivision plan which define such unit. Similarly, the Condominium Act addresses taxation and assessment CONDOMINIUM ACT of condominiums by requiring in Section 131 that, except for the tax year in which land is committed to the condo- In a technical sense, the term "condominium" refers minium, taxes shall be levied only against the units therein strictly to a form of ownership of real property. Condo- as separate, single units of real property. minium ownership of real property is entirely a creature of statute. Such was first recognized and made lawful in The Condominium Act, however, goes beyond these Michigan under the Horizontal Real Property Act.6 This administrative provisions and provides enhanced consumer statute served the state through some fifteen years of protection" as well. Provisions requiring escrow of deposits increasingly intense development of condominium pro- and insuring the existence of sufficient funds to complete perties and growing sophistication in the use of the then "must be built" improvements and structures, provisions maturing concept. The 1963 Act was eventually replaced requiring that relevant condominium documents be pro- by the Michigan Condominium Act of 1978. vided to purchasers for review in advance of a contract for purchase becoming binding, provisions containing detailed The Condominium Act was the product of several requirements for preparation of a disclosure statement years of careful scrutiny. Consumer advocates, developers, which must be provided to purchasers, and provisions bankers, realtors, and legal professionals, as well as various providing penalties for misleading advertising and fraud by interested agencies and legislative committees, each had developers are all found in the Condominium Act with no input in the development and drafting of the statute. The counterpart in the Subdivision Control Act. The authors combination of this effort was a statutory framework know of no other statutorily imposed period of time allow-, remarkable both for its extensive "consumer protection" ing a purchaser a "cooling off" period wherein he may provisions and for its broad creativity in applying the unilaterally withdraw from a purchase agreement for the concept to modern property development. The Condo- sale of real estate, other than that which is found in the minium Act recognized the increasing public understanding Condominium Act. and acceptance of the condominium form of ownership and its evolution from ownership of airspace within a The legislature in the Michigan Condominium Act structure to ownership of title and rights, both divided and specifically exempted condominium projects from the undivided, in any form of real estate use or development, Subdivision Control Act by stating be it residential, commercial, industrial, marina, mobile home, campground or otherwise. ¯.. The pro.visions of Act 228 of the Public Acts of 1967, as amended, being Sections 560.101 According to the Condominium Act, a condominium to 560.293 of the Michigan Compiled Laws, shall project is a plan or project consisting of at least two units not control divisions made for any condominium established in conformance with the Condominium Act.7 project.~ Winter, 1989 -- Page 244 MICHIGAN REAL PROPERTY REVIEW

The Michigan Condominium Act, however, is not totally to the Subdivision Control Act of 1967.I~ The Attorney without local governmental regulation. The Act does General opined that provide that condominiums must comply with all local building and zoning ordinances. The Act further provides a site condominium project consisting of not less that all interested local and state governmental agencies than two condominium units and established in must be notified of a developer’s intent to construct a conformance with the Condominium Act (cita- condominium. It is clear, under the Condominium Act, that tions omitted) is not subject to the Subdivision local governmental agencies or departments are afforded Control Act of 1967 (citations omitted). ample opportunity to enforce land use and planning regula- tions and building standards almost to the same extent as The first part of the Attorney General’s opinion in a traditional subdivision, provided that proper local reviewed the statutory definitions and requirements for ordinances exist. ¯ establishing a condominium in this state, while also noting the administrative control provisions of the Condominium The Subdivision Control Act has not had any amend- Act previously discussed in this article. The heart of the ments which were aimed at streamlining and shortening opinion which followed concluded that a condominium is its approval time. The Condominium Act however, under- not a subdivision of real property, as defined in the Sub- went further significant amendment in both 1982 and division Control Act, but is comprised of condominium 1983.1° These amendments phased out the governmental units and limited and general common elements situated pre-recordation review and approval power vested in the on a single parcel of real property. The Attorney Michigan Department of Commerce. Such action occurred General went on to state that consistent with this concept in the legislature partly in recognition of the fact that public of a condominium being situated on a single parcel of real familiarity with the burdens and benefits of condominium property, Section 10(1) of the Condominium Act excludes ownership had increased. The legislature further realized condominium projects from the requirements of the Sub- that centralized pre-recordation governmental review and division Control Act. regulation was becoming burdensome to both the state and the increasingly sophisticated developers. As a result of this Although the authors agree with the conclusion of the change, various local governmental units may be ill- Attorney General, we are concerned that a definitional equipped in terms of land use ordinances and requisite problem still exists which may leave certain local govern- knowledge and understanding of condominium ownership mental agencies questioning the propriety of a properly to effectively deal with the still evolving condominium established site condominium. development concept. The concern arises when one considers the conclu- Why then is there so much concern that a site condo- sion that a condominium does not involve the subdivision minium may be a "circumvention" of the Subdivision of land. Under well settled law in this state, "land" includes Control Act? Most certainly the question is invoked because ground, all natural and artificial attachments thereto, and the Subdivision Control Act is triggered, broadly ~peaking, it extends to the sky and to the center of the earth.13 The by a subdivision of land for the purpose of sale, lease, or 11 creation of all condominium units, regardless of how they development. From a literal viewpoint, many cannot are configured or whether they include ground, air, struc- rationally see why a condominium does not fit this trig- tures or any combination of these attributes, must, by gertng scenario. Secondly, many less populated areas have definition, involve divisions of land. The Condominium Act not been exposed to the rapidly evolving condominium specifically excludes from the Subdivision Control ACt "divi- concept, and as a result, have enacted no procedures or sions made for any condominium project".14 The difference ordinances by which they can comfortably regulate or between divisions of land for condominiums and divisions approve condominium site plans. Seeing a site condo- minium proposal which looks on paper very much like a of land for "platting" is one of type and degree. To ignore single family subdivision (and may be almost indistinguish- the fact that divisions of land are inherent in condominiums able once built), these governmental units presume the is to create a literal fallacy which begs comprehension by Subdivision Control Act should be invoked, thus providing those who look to the Subdivision Control Act’s rather them the vehicle for regulation with which they are familiar. broad triggering language which looks to "the partitioning or dividing of a parcel of tract of land",is ATTORNEY GENERAL OPINION The real distinguishing feature of condominiums is the Earlier this year the Attorney General was requested form of ownership, with the unit being owned in fee, com- to opine as to whether "site condominiums" were subject bined with an undivided ownership interest in the common MICHIGAN REAL PROPERTY REVIEW Winter, 1989 -- Page 245

areas which is administered by a corporate body known restraints on the exercise of police power are the require- as the association. It is not because land is not divided ments that the operative provisions of the statute be that a condominium is statutorily exempted from the reasonably related to a proper purpose and that such Subdivision Control Act. It is because the division is not provisions not be discriminatory nor arbitrary and complete and absolute, forming separate and distinct capricous. parcels capable of individual ownership without the unique shared interest in common area and centralized corporate The competing interests invoked by operation of authority over the parcel which are present in condo- statutes such as the Subdivision Control Act were summed miniums. The type and degree of land division are very up by the Michigan Court of Appeals when it observed that different. "[l]aws regulating land use must be considered in the context of what is often a conflict between two significant Indeed, as the Attorney General observed, a condo- rights: (I) the right of a landowner to utilize his land as he minium project is more rationally treated as existing on a desires and (2) the right of the state, through its political single parcel of real property, with the owners thereof subdivisions, to guarantee that an individual’s land use is owning the parcel in common. The joint ownership concept consistent with the public good:’~6 This conflict arises is furthered when one considers that co-owners cannot likewise in the context of zoning ordinances, which are bring an action for partition of the common elements, and premised on an identical exercise of the police power, and must operate the condominium and shared common are subject to the same limitations and restraints. It is elements through the statutorily mandated mechanism of significant to note that the exercise of the police power, an "Association", which is a corporation formed to act as in either subdivision control or zoning legislation, is directed the centralized democratic authority over the land as a primarily at the regulation of use, and has no regard to whole. The concept is further supported when one con- the ownership of the property or who may be the siders that the property on which a condominium is operator of the use. It is well settled that land use regula- developed is originally owned in total by the developer and, tions cannot apply criteria having no bearing on the actual upon termination of a condominium, the ownership of the land use, and that ownership or form of possession of the entire parcel vests in the former unit owners as tenants in property involved does not affect use. common in proportion to their undivided shares. Unlike a subdivision lot created by platting, which is always capable With these limitations in mind, it is instructive to note of separate, non-shared ownership from other lots, a the triggering event which gives rise to operation and condominium unit always carries with it an aspect of application of the Subdivision Control Act. Section 103 of common ownership. Further, whereas a subdivision lot said Act indicates that a subdivision shall be surveyed and enjoys an independent existence after it is platted, the a plat thereto submitted in those instances in which any condominium units existence is dependent on its creation division of land creates a "subdivision" as defined in Section under the Condominium Act and the continuation of the 102. Section 102(d) indicates that: condominium regime. Subdivide or subdivision means the partitioning CONSTITUTIONAL QUESTIONS or dividing of a parcel or tract of land by the proprietor thereof or by his heirs, executors, Aside from the argument that the unique ownership administrators, legal representatives, successors scheme inherent in condominiums provides a compelling or assigns for the purpose of sale, or lease of basis for the existing statutory exclusion of condominiums more than one year, or of building development, from the provisions of the Subdivision Control Act, consti- where the act of division creates 5 or more tutional questions appear to arise if such were not the case. parcels of land each of which is 10 acres or less in area; or 5 or more parcels of land each of Unlike the Condominium Act, which is legislation which is 10 acres or less in area are created by aimed primarily at establishing provisions for the condo- successive divisions within a period of 10 years. minium form of ownership in this state, it is clear from the language of the preamble that the intent of the Subdivision Clearly, the operation of the Subdivision Control Act Control Act is to invoke the police power of the state for is triggered not only as a result of the broadly defined the purpose of promoting and protecting the health, safety, division of land, but such a division in conjunction with and welfare of its citizens. With the exercise of police power an anticipated transfer of ownership. This exl~oses a poten- by governmental entities comes certain constitutional pro- tial Achilles heel of the Subdivision Control Act, as well tections and requirements which define the limits of the as most other modern day platting statutes which rely upon proper exercise of such power. Among these constitutional similar triggering events. Winter, 1989 -- Page 246 MICHIGAN REAL PROPERTY REVIEW

As pointed out previously, these statutes are premised undivided common ownership, dependency on continua- upon the police power to control use for the public good, tion of the condominium regime and statutorily mandated yet they are triggered by an anticipated transfer of owner- centralized corporate control, makes it clearly distinguish- ship, which has been held not to affect use, and therefore able from the complete and absolute division of land is not a constitutionally proper basis upon which to draft contemplated by the Subdivision Control Act. Rationally, land use legislation. This internal conflict which exists at condominium ownership is most closely related to common the heart of the Subdivision Control Act does not render ownership of a single parcel. the Subdivision Control Act constitutionally deficient at the outset; however, it does create the possibility for uncon- This problem may be remedied by legislative action stitutional application in situations where identical uses can on the Subdivision Control Act. Perhaps at the same time, receive disparate treatment based only upon the form of the Subdivision Control Act’s procedures could be modified ownership of the property involved. The potential foi~ such and approval time shortened to increase the attractiveness an unconstitutional exercise of the police power is especially of platting as a modern development alternative. acute in an instance where such statutes are arg~aed to To further eliminate hesitancy on the part of local apply to the unique, statutorily created and defined form governments toward site condominiums, these entities of ownership known as condominium. Utilizing the concept should take notice that the condominium alternative exist, of a condominium project as a single parcel of real estate, and that they have the power to regulate, by way of zoning it would appear difficult to fashion a constitutionally sound and building ordinances, this type of development. What distinction under a platting statute for treating it differently is needed on the local level are ordinances drafted to deal from a rental project or cooperative development of the specifically with the unique characteristics of condominium same use which clearly do not require platting under the projects and the condominium form of ownership. Subdivision Control Act.~7 CONCLUSION FOOTNOTES Condominium development, regardless of the type or nature of use, is of statutory creation and is compre- * Mark E Makower is a graduate of Washington Univer- hensively controlled in the state by the Condominium Act. sity School of Law, and a principal in the firm of Mark The uniqueness of the condominium form of ownership, E Makower and Associates, P.C., specializing in real estate and the inability of the Subdivision Control Act to constitu- development and construction law. Mr. Makower has tionally relate to and regulate condominiums, support the lectured for the Institute of Continuing Legal Education statutory exemption of the condominiums from provisions in the area of Condominium Law, and is actively involved of the Subdivision Control Act. in the area through representation of over 50 condo- minium and community associations and various Condominium development exists as an alternative developers. Mr. Makower is a member of the Real to traditional platting. A condominium is created through Property Law Section’s Committee on Condominiums, compliance with the Condominium Act, not by circum- PUDs and Cooperatives, and is a licensed residential venting the Subdivision Control Act. Through its own builder and developer. statutory provisions, the Condominium Act protects all proper and legitimate public interests, much the same as Jeffery R. Jones is an associate with Maddin, Hauser, the Subdivision Control Act protects these interests in cases Wartell, Roth, Heller & Pesses, and a graduate of of platted subdivisions. In addition, the Condominium Act American University’s Washington College of Law. Mr. also provides significant consumer protection provisions not Jones has lectured in the Real Property Law Section’s found in the Subdivision Control Act. For these various "Homeward Bound" series, and for the Institute of reasons, the skepticism and hesitation surrounding accept- Continuing Legal Education and has co-authored articles ance of the "site condominium" by certain individuals and in the Michigan Real Property Review on aspects of local governments seems unfounded. Michigan condominium law. He is the chairperson of the Real Property Law Section’s Committee on Condo- The apparent confliqt between the Subdivision Control miniums, PUDs and Cooperatives. Act and site condominiums is one of definition and lack of understanding. It is a literal falsehood to indicate that The authors wish to acknowledge the contribution a condominium does not involve subdivisions of land. The of Owen M. Porterfield, Jr., who assisted in the pre- nature of the division, however, with its appurtenant, paration of this article. MICHIGAN REAL PROPERTY REVIEW Winter, 1989 -- Page 247

"Phenomenonal" -- Relating to or being a 10. 1982 PA 538 and 1983 PA 113. phenomenon: as a) known through the senses rather than through thought or intuition ...." Webster’s 11. MCLA 540.102(d). New Collegiate Dlctlona~, 1980, G. & C. 12. OAG 1989, No. 6577 (March 13, 1989). Merriam Co. 13. Sisters of Charity of Detroit v. Detroit, 9 Mich 94 MCLA 559,101 et seq. (1860); Buhl v. Kenyon, 11 Mich 249, 83 AD 738 (1863); Seagar v. McCabe, 92 Mich 186, 52 NW 3. 1963 PA 229. 299, 16 LRA 249 (1892); Connecticut Mutual 4. MCLA 560. I01-560.293. Insurance Co. v. Wood, 115 Mich 444, 74 NW 656 (1897). MCLA 8.3. MSA 2.212(9). 5. 1929 PA 172. 14. MCLA 559.110(1). 6. 1963 PA 229. 15. MCLA 560.102(d). 7. MCLA 104(1). 16. Hessee Realty, Inc. v. City of Ann Arbor, 61 Mich 8. MCLA 559.104(3). App 319, 232 NW2d 695 (1975).

9. MCLA 559. I I0(I). 17. MCLA 560.102(d). MICHIGAN REAL PROPERTY REVIEW Winter, 1989 -- Page 249

REIMBURSEMENT OF ATTORNEY FEES AND LITIGATION COSTS UNDER THE UNIFORM CONDEMNATION PROCEDURES ACT

by Boris K. Yakima*

Having the opposition pay for your client’s attorney most cases, to reflect the going market rate for legal and fees and litigation costs has always been an inviting pro- appraisal expertise. position to place before any attorney. Unfortunately, under the so-called "American Rule" of jurisprudence, such In the three years since the issue of attorney fee reim- instances are extremely few and far between. Unless bursement has last been reviewed (see Mason and Stein- expressly permitted to do so by statute or court rule, or hardt, "Attorney Fees in Condemnation Cases," 13 Mich where specific limited inroads have been made such as the Real Property Review 73 [1986]), Michigan appellate common fund doctrine pertaining to class litigation, courts have better defined the parameters of Act 87’s American courts have uniformly rejected attempts by reimbursement provisions. prevailing parties to recover their costs of litigation. OVERVIEW OF ACT 87 One specific deviation from the American Rule can be found in Michigan’s Uniform Condemnation Procedures To understand the dynamics and rationale behind the Act (1980 PA 87, MCLA 213.51 et seq; MSA 8.265(1) reimbursement provisions of Act 87, one must understand et seq) (Act 87). Not only does Act 87 expressly permit the process by which property is acquired through the reimbursement of attorney fees and costs by the prevail- powers of eminent domain. Act 87 is the sole procedural ing property owner but it allows such reimbursement, in vehicle which condemning agencies use to acquire property

* Boris K. Yakima is a member and shareholder of the Bloomfield Hills, Michigan firm of Monaghan, LoPrete, McDonald, Sogge & Yakima. He is a 1970 graduate of the Wayne State University Law School and has specialized in condem- nation law for the past fifteen years. Mr. Yakima is presently Chairman of the State Bar Real Property Section Eminent Domain Committee and has lectured on condemnation law and practice for the Institute for Continuing Legal Educa- tion (ICLE), the Real Property Section "Homeward Bound" series, the American Society of Appraisers and the Michigan Municipal Attorneys Association. Winter, 1989 -- Page 250 MICHIGAN REAL PROPERTY REVIEW

by condemnation in Michigan. All actions sounding in Examples of successful challenges to an agency’s right to eminent domain must strictly adhere to the procedures set acquire can be found in two recent decisions of the Court forth in the Act. The title of the Act itself is a bit of a of Appeals. misnomer; its provisions deal with substantive as well as procedural rights. In Escanaba & Lake Superior RR Co v Kewee- naw, 156 Mich App 804 (1986), the property owner, by motion for summary disposition, attacked the subject Essentially, the acquisition process is initiated by the matter jurisdiction of the Circuit Court hearing the con- condemning agency’s tender of a written good faith offer demnation action. The basis of the attack was that the offer to the property owner. If the offer is not accepted, the tendered to the property owner did not fulfill the statutory agency may then file a formal condemnation complaint requirement of a "good faith written offer". The trial court in the Circuit Court where the property is located. Assure- agreed with the property owner and, ruling that a good ing that the property owner does not challenge necessity faith written offer was a jurisdictional prerequisite, dismissed or the jurisdiction of the court, title to the property vests the case. The agency then filed a number of motions with the agency, effective as of the day the complaint was including one for reconsideration and two for disqualifi- filed. In return for the immediate vesting of title, the cation of judges in the case. When the property owner property owner may withdraw the amount of estimated eventually filed its motion for reimbursement of attorney just compensation deposited by the agency at the time the fees and costs, the trial court granted full reimbursement complaint was filed without waiving his or her right to including fees incurred in defending the various motions contest the amount of ultimate compensation. The matter filed by the agency as well as for fees incurred as a result proceeds to the regular trial docket for an eventual hearing of the actual motion for costs. In addition, the property on the issue of just compensation. owner was permitted reimbursement of staff salaries and fringe benefits of its corporate employees and in-house In contesting either the agency’s right to acquire the counsel incurred because of the filing of the condemna- property or the amount of compensation offered, the tion action. property owner will undoubtedly retain counsel and inde- pendent experts such as real estate or trade fixture On appeal, the Court of Appeals affirmed the trial appraisers, architects, engineers or other experts to prepare judge on all of the attorney fee issues but reversed the for trial. award which reimbursed the staff salaries and in-house counsel fees. In addition, the Court of Appeals permitted reimbursement of attorney fees incurred as a result of the Act 87 permits reimbursement of attorney fees and appeal itself. The criteria used by the Court of Appeals independent expert fees in a variety of circumstances. appears to be that any reasonable expenses or legal fees necessarily incurred by property owners defending against REIMBURSEMENT WHERE THE (or continuing to defend against) improper acquisitions RIGHT TO ACQUIRE IS CHALLENGED would be reimbursable as long as they constituted out-of- pocket outlays of money that would not have been paid Under Act 87, reimbursement of attorney fees but for the condemnation itself. incurred as a result of an owner’s challenge to the agency’s right to acquire property is appropriate only if the owner In Center Line v Chmelko, 164 Mich App 251 is ultimately successful and the acquisition is determined (1987), the property owners challenged the city’s right to to be improper. acquire their property alleging that the taking was for private rather than public benefit. Again, because the taking was determined to be improper, the property owners were If the property owner, by motion to review neces- eventually reimbursed for all of their reasonable attorney sity or otherwise, successfully challenges the fees and costs both in the trial court and in the Court of agency’s right to acquire the property, or the legal Appeals. sufficiency of the proceedings, and the court finds the proposed acquisition improper, the court shall Unlike the situation that pertains to reimbursement of order the agency to reimburse the owner for attorney fees, a condemning agency is required to reim- actual reasonable attorney fees and other burse reasonable- and necessary expert witness fees in- expenses incurred in defending against the curred by the property owner even where the owner’s improper acquisition. MCLA 213.66(2); MSA challenge to the taking is unsuccessful. Ma¢omb County 8.265(16)(2). Road Comm v Fisher, 170 Mich App 697 (1988). MICHIGAN REAL PROPERTY REVIEW Winter, 1989 -- Page 251

REIMBURSEMENT WHERE THE AGENCY the ultimate award exceeds the agency’s written DISCONTINUES THE PROCEEDINGS offer as defined by Section 5. The reasonableness of the owner’s attorney’s fees shall be determined Although severely limited by Act 87, a condemning by the court. agency may still discontinue a condemnation proceeding. In codifying this provision, the Michigan Legislature was The agency shall not discontinue the action after simply recognizing the realities of the market place wherein the granting of possession or vesting of title to the contingent fee agreement was, and is, the usual mode the property taken. In case of a discontinuance, for determining attorney fees in condemnation cases. The the agency, as a condition of discontinuance, important moving parts of this equation are thus the shall pay the actual expenses, reasonable agency’s written good faith offer (the starting point), the attorney fees, and actual damages to all the ultimate award (the ending point) and the contingency parties affected by the discontinuance as deter- percentage (the measure of fees). mined by the court. MCLA 213.67; MSA 8.265 (17). The good faith written offer is important because it constitutes the subtrahend of the equation. In addition, There are no reported decisions involving the discon- while the agency may increase or decrease its offer prior tinuance of a condemnation action under Act 87. to or at trial, it is the initial good faith written offer that Presumably, this section of the Act greatly expands the controls for purposes of determining reimbursable attorney range of reimbursement available to a property owner. In fees. Bay City v Surath, 170 Mich App 139 (1988); addition to the usual reasonable attorney fee provision, the Dep’t of Transportation v Plchalski, 168 Mich App Act mandates the payment of actual expenses and actual 712 (1988). damages. Arguably, any damages or expenses incurred by the property owner either in reliance on or as a result of The "ultimate award" (the minuend in our exercise) the filing of the condemnation action could be recovered consists of both the just compensation determined by the from the condemning agency. Also, since this provision court or the jury and statutory interest payable as a result speaks in terms of "payment" rather than "reimbursement;’ of the taking. Dep’t of Transportation v Dennis, 133 it would logically encompass more than the "cash outlays" Mich App 207 (1984); Dep’t of Transportation v required by the Escanaba court. For example, if the filing DIMatteo, 136 Mich App 15 (1984). of the condemnation proceedings defeats the development of a parcel of property when market conditions are Most condemning agencies now recognize the one- favorable and the case is discontinued at a time when the third (1/3) contingency as a standard, and therefore market has disappeared, the developer might well argue reasonable, attorney fee which reflects the reality of the that his actual damages are equal to the lost profits on the market place. Unfortunately, this is not universally true and project, owner’s attorneys are occasionally forced to file formal motions requesting the reimbursement of fees and costs. REIMBURSEMENT OF FEES AND At such a motion hearing, good practice should dictate that EXPENSES WHERE THE OWNER IS the owner’s attorney present evidence, usually in the form SUCCESSFUL IN INCREASING COMPENSATION of expert testimony, that the fee requested is reasonable.. Again, there are no Michigan Appellate decisions dealing In most condemnation situations, the real issue centers with the issue of reimbursement of costs (expert witness upon the amount of just compensation to be paid for the fees) incurred because of these cost hearings. Counter- property acquired. In these cases, the reimbursement of vailing arguments for and against such reimbursement can attorney fees is controlled by MCLA 213.66(3); MSA be fashioned quite easily. 8.265(16)(3). A property owner, whether or not he or she succeeds If the amount finally determined to be just com- in increasing the just compensation, has a right to be reim- pensation for the property acquired exceeds the bursed for all reasonable expert witness fees necessary to amount of the written offer as defined in Section allow the owner to prepare for trial. While reimbursement 5, the court shall Order reimbursement in whole of these fees is mandatory, the amount itself is at the discre- or in part to the owner by the agency of the tion of the court and is limited to amounts that are both owner’s reasonable attorney’s fees, but not in reasonable and necessary. In at least one recent case, the excess of one-third (I/3) of the amount by which trial court, in its discretion, pared the requested experts’ Winter, 1989 -- Page 252 MICHIGAN REAL PROPERTY REVIEW

fees; excising amounts attributed to conferences between Lutheran Church v Los Angeles County, 482 US 304; the appraiser and counsel for the owner for purposes such 107 S Ct 2378; 96 LEd 2d 250 (1987), and by the as educating counsel about expert appraisal, strategy Michigan Court of Appeals in Poirler v Grand Blanc sessions and critical assessments of the opposing party’s Twp, 167 MA 770 (1988), actions filed by aggrieved position. City of Detroit v Lufran Co, 159 Mich App property owners will undoubtedly increase over the next 62 (1987). few years. We will either have conflicting decisions from the Michigan courts as to the applicability of Act 87 in INVERSE CONDEMNATION inverse condemnation situations or the state legislature will be pressed to amend the present Act to correct this inequity. As the result of a relat&ely recent decision of the Court In the meantime, practitioners will undoubtedly see more of Appeals, the question of whether or not attorney fees opinions such as City of Luna Pier v Lake Erie Land- and costs are reimbursable in inverse condemnation cases owners, 175 MA 430 (1989), in which the Court of can be dealt with quite summarily. Normally they are not Appeals, recognizing the problem created by the Lira reimbursable. The rationale behind the decision in Llm v decision, strained to find Act 87’S reimbursement provisions Dep’t of Transportation, 167 Mich App 751 (1988), lies applicable in what the court termed an inverse taking. Close in the failure of Act 87, or any other Michigan condemna- examination of the Luna Pier case suggests that the court tion statute, to expressly provide for reimbursement of decision may have turned on the "equities" of the situa- attorney fees and costs in cases where the property owner tion rather than upon a correct interpretation of Act 87 and initiates a de facto taking claim against a condemning traditional eminent domain law. agency. The Lira court determined that there was no statutory authority for granting such reimbursement and ACT 87 REIMBURSEMENT PROVISIONS therefore applied the "American rule" to deny relief. AND THE MICHIGAN COURT RULES Unfortunately, although Act 87 is replete with One last decision merits mention in any review of the numerous references to inverse condemnation or to "de reimbursement provisions of Act 87. A troubling scenario facto takings;’ there is no specific and express authority that has existed since Act 87 was passed was the situation for the reimbursement of fees and costs. Thus, by adopt- created if one of the parties to the condemnation rejected ing this very narrow interpretation of Act 87, the Llm court a mediation award, or rejected an offer to settle under MCR has effectivly created two classes of property owners whose 2.405, and then proceeded to an unfavorable jury verdict. property has been taken by a condemning agency. The If the rejecting party was the condemning agency, could first class, whose property has been taken de jure, is the property owner ask for reasonable attorney fees and entitled to receive full reimbursement for all reasonable and costs in addition to the reasonable attorney fees and costs necessary fees as permitted by the statute. The second provided by Act 87? If, on the other hand, it was the group, whose property has been taken de facto, must pay property owner who rejected pursuant to the court rules, their own fees and costs out of any just compensation they could the condemning agency ask for reasonable attorney receive. fees and costs from the property owner? We have a partial Aggravating this situation, is the language of Section answer in the recent case of Dep’t of Transportation v 21 of Act 87 (MCLA 213.71; MSA 8.265(21)) which Dyl (Court of Appeals Docket No. 105144, decided May permits a property owner to assert as a counterclaim in 2, 1989}. Not only were the successful property owners a de jure condemnation action, an inverse condemnation reimbursed in full in accordance with their contingency fee claim. Thus, a property owner who asserts an inverse agreement with their attorney, they were also awarded condemnation claim as a counterclaim in a de jure taking additional reasonable attorney fees pursuant to MCR case has a right to expect full reimbursement for his 2.405. The basis for the Court of Appeals decision was attorney fees and costs. the fact that the reimbursement provision of Act 87 and the sanctions contained in MCR 2.405 served indepen- This disparate treatment of property owners with dent purposes and were therefore appropriate when respect to reimbursement will undoubtedly be raised in applicable. Reference made in the opinion to other deci- future cases. Since inverse condemnation has now been sions make it fairly clear that the same rationale will hold recognized by the U.S. Supreme Court as a remedy for true in the case of MCR 2.403 dealing with mediation overzealous land use regulation in First Evangelical sanctions. MICHIGAN REAL PROPERTY REVIEW Winter, 1989 -- Page 253

CHAIRMAN’S MESSAGE: PARTICIPATE - LEARN - HAVE FUN!

by James M. Tervo*

And do as adversaries do in law - Strive mightily, but eat and drink as friends. Shakespeare The Taming of the Shrew

My message to you as the new Chairman of the Real There are other diverse ways in which you may wish Property Law Section of the State Bar of Michigan is to participate in the activities of the Section. For example, simple: PARTICIPATE - LEARN - HAVE FUN! This we are now planning the Table of Contents for the Summer message is based on my personal experiences with the 1990 issue of the Michigan Real Property Review. Section; that is, I decided to participate, I learned much Articles are not due until April 1, 1990 and so it is not too about real property law and practice because of my parti- late to volunteer. Perhaps you have recently had the cipation, and I met numerous great people and had a lot opportunity to do some research in an area of the law that of fun. would be of general interest to all members. Please share this information with us by volunteering to author or Opportunities to participate are manyand varied. For co-author an article. example, you may wish to join and become active in one of the many committees of the Section. This edition of the We invite you to join us at the 1990 Winter Con; Michigan Real P~operty Review includes a current ference to be held at Disney World in Orlando, Florida from listing of the committees, their chairperson and member- March 7 to March 11. This conference is entitled "Selected ship. Participation is encouraged and welcomed. To join Issues in Real Estate for the 1990’s". If you are not able a committee, simply contact me, the appropriate committee to join us for the Winter Conference, please make plans chairperson, or Nyal Deems, the Chairperson-Elect. As a to join us for the 1990 Summer Conference to be held member of a committee, you may volunteer to study at Boyne Highlands, Boyne Falls, Michigan from July 25 proposed legislation, or perhaps, organize a seminar. through July 28.

"Dickinson, Wright, Moon, Van Dusen & Freeman - Detroit, Michigan MICHIGAN REAL PROPERTY REVIEW Winter, 1989 -- Page 255

LEGISLATIVE STATUS REPORT

ACTION ON LEGISLATION OVER LAST THREE MONTHS

Gregory L. McClelland

HB 4106 - Clarifies that certain biweekly mortgage loans HB 4831 - Amends franchise investment law so as to are not in violation of compensatory balance prohibition exclude certain nonprofit organizations operated on a -- 2/7/89, Committee on Corporations & Finance; cooperative basis from the act -- 5/16/89, Committee on 9/27/89, second reading with amendment(s); 10/11/89, Corporations & Finance; 7/26/89, second reading; third reading; 10/12/89, amended, passed; 10/17/89, 7/27/89, third reading, passed; 7/28/89, Committee on Committee on Commerce & Technology. Commerce & Technology; 10/18/89, general orders; 10/24/89, third reading; 10/31/89, passed; 10/31/89, HB 4222-4226 - Amends occupational code to require ordered enrolled; 11/6/89, presented to Governor; review of licenses upon notification of violation of asbestos 11/11/89, approved by Governor as Public Act No. 212. abatement contractors act and Michigan occupational, HB 4874 - Increases bonding authority of housing safety and health act and provides for revocation or suspen- development authority and makes general amendments sion of license by board -- 2/16/89, Committee on Labor; to housing development authority act -- 5/25/89, Com- 11/15/89, second reading. mittee on Urban Affairs; 11/1/89, second reading with substitute; 11/7/89, third reading with substitute as HB 4308 - Modifies property tax credit provisions of the amended, passed; 11/8/89, Committee on Finance. income tax act of 1967 -- 2/23/89, Committee on Taxa- tion; -- 3/1/89, second reading with substitute; 3/2/89, HB 4888 - Amends the franchise investment law to third reading with substitute as amended, passed; 3/7/89, require department to provide certain notices to franchisor Committee on Finance; 7/28/89, general orders with -- 6/7/89, Committee on Corporations & Finance; substitute; 7/13/89, third reading with substitute, passed; 7/26/89, second reading; 7/27/89, third reading, passed; 7/26/89, Senate substitute concurred in, ordered enrolled; 7/28/89, Committee on Commerce & Technology; 8/9/89, presented to Governor; 8/15/89, approved by 10/18/89, general orders; 10/24/89, third reading; Governor as Public Act No. 166. 10/31/89, passed; 10/31/89, ordered enrolled; 11/6/89, presented to Governor; 11/11/89, approved by Gover- HB 4654 - Amends public health codes to provide that nor as Public Act No. 213. the seller of a parcel of real property containing a well that supplies drinking water shall have the well tested and shall HB 4978 - Amends public health code to allow Depart- ment of Public Health to issue construction permits for deliver the test results to the purchaser and the health certain projects, perform reviews and assess fees -- department -- 4/13/89, Committee on’ Public Health; 9/25/89, second reading with amendment(s); 9/26/89, 7/13/89, Committee on Public Health; 9/28/89, second reading with amendment(s); 10/3/89, third reading with third reading with amendment(s); 10/17/89, amended, amendment(s); 10/4/89, amended, passed; 10/10/89, passed; 10/18/89, Committee on Natural Resources & Committee on Health Policy. Environmental Affairs. HB 4987 - Amends single business tax act to provide HB 4773 - Amends tax tribunal act to provide that an exemption for certain farmers cooperative corporations -- appeal from a decision of tribunal be taken in accordance 7/13/89, Committee on Taxation; 10/25/89, second with the Michigan Court Rules -- 5/4/89, Committee on reading with substitute; 10/26/89, third reading with Taxation; 10/25/89, second reading; 10/26/89, third substitute; 10/30/89, passed; 11/1/89, Committee on reading. Finance. Winter, 1989 -- Page 256 MICHIGAN REAL PROPERTY REVIEW

liB 5040 - Creates the "irrigation loan act" to provide contractor bids on state projects as for general contractor for interest free loans from the department of agriculture bids -- introduced by Rep. Profit et al on 9/26/89 and for purchasing and installing irrigation equipment for referred to Committee on State Affairs. persons engaged in farm operations -- introduced by Rep. Bryant on 9/20/89 and referred to Committee on Appro- HB 5093 - Amends the lottery act to provide for suspen- priations. sion or revocation of lottery license for retailer fraudulently redeeming food stamps -- 9/27/89, Committee on Social HB 5052 - Creates "disadvantaged business enterprises Services & Youth; 11/9/89, second reading with amend- act" for the purpose of correcting the present effects of past ment(s); 11/14/89, third reading with amendment(s); discrimination in state procurement practices -- introduced 11/15/89, passed; 11/28/89, Committee on Regulatory by Rep. Hood on 9/21/89 and referred to Committee on Affairs. State Affairs. ¯ HB 5094 - Amends Michigan liquor control act to lib 5064 - Prohibits untreated sewage discharges in the provide for suspension or revocation of liquor license for waters of this state and provides penalties -- introduced a retailer fraudulently redeeming food stamps -- 9/27/89, by Rep. Van Regenmorter et al on 9/21/89 and referred Committee on Social Services & Youth; 11/9/89, second to Committee on Conservation, Recreation & Environ- reading with amendment(s); 11/14/89, third reading with ment. amendment(s); 11/15/89, amended, passed; 11/28/89, Committee on Regulatory Affairs. lib 5076 - Provides that members of a city housing commission may receive a salary in an amount determined HB 5104 - Amends the county rural zoning enabling act by the legislative body of the city or village -- introduced to require board of commissioners to consider incorporating by Rep. Pitoniak et al on 9/25/89 and referred to Com- wellhead protection measures when updating or amending mittee on Urban Affairs. its master plan or zoning ordinance -- introduced by Rep. Kosteva et al on 9/28/89 and referred to Committee on lib 5077 - Amends general property tax act to reduce Towns & Counties. property tax assessments to 40% of true cash value -- introduced by Rep. Law et al on 9/25/89 and referred HB 5105 - Requires legislative bodies of cities or villages to Committee on Taxation. to consider incorporating wellhead protection measures when updating or amending their master plan or zoning HB 5078 - Amends general property tax act to require ordinance -- introduced by Rep. Kosteva et al on 9/28/89 certification of the amount of taxes levied by certain local and referred to Committee on Towns & Counties. units of government for recreational purposes -- 9/25/89, Committee on Taxation; 11/1/89, second reading with HB 5107 - Amends the township rural zoning act to substitute; 11/6/89, third reading with substitute as return zoning control of oil and gas well drilling to townships amended; 11/7/89, passed; 11/8/89, Committee on -- introduced by Rep. Law et al on 9/29/89 and referred Local Government & Veterans. to Committee on Towns & Counties. liB 5083 - Amends the economic development corpo- HB 5109-5114 - Amends state laws pertaining to ration act to include protection of ground water and surface licensed residential facilities to bring into compliance with water within the definition of "economic development" -- federal fair housing act -- introduced by Rep. Hollister et introduced by Rep. Nye on 9/26/89 and referred to Com- al on 9/28/89 and referred to Committee on Mental mittee on Economic Development & Energy. Health. HB 5085 - Provides for notices to public utilities by HB 5115 - Amends the township rural zoning act to persons or .public agencies excavating or discharging require a township boards to consider incorporating explosives near underground facilities -- 9/26/89, Com- wellhead protection measures when amending its master mittee on Public Utilities; ~10/23/89, second reading with plan or zoning ordinance -- introduced by Rep. Kosteva substitute; 10/25/89, third reading with substitute; et al on 9/28/89 and referred to Committee on Towns 10/26/89, passed; 10/31/89, Committee on Commerce & Counties. & Technology; 11/28/89, general orders. HB 5116 - Amenda act regulating certain mortgage HB 5087 - Amends the management and budget act to lending practices to require reports, establish local mortgage require substantially similar bidding procedures for sub- review board, and to provide remedies and penalties and MICHIGAN REAL PROPERTY REVIEW Winter, 1989 -- Page 257

and other amendments -- introduced by Rep. Murphy on be considered perfected unless the instrument is accom- 9/28/89 and referred to Committee on Corporations & panied with proof of service that notice has been given to Finance. the last registered property owner -- introduced by Rep. Barns on 10/24/89 and referred to Committee on Urban HB 5118 - Amends the general property tax act to Affairs. require earlier mailing of notice of assessment (on or before the third Monday in January) -- introduced by Rep. lib 5236 - Amends liquor control act to permit sale of Hoekman on 10/2/89 and referred to Committee on beer on and off premises for SDM microbreweries -- Taxation. introduced by Rep. Alley et al on 10/26/89 and referred to Committee on Liquor Control. HB 5137 - (Same as SB 571) Amends the highway advertising act of 1972 to permit certain townships to enact HB 5240 - Amends income tax act to increase max- sign control ordinances more restrictive than state law -- imum property tax credit -- introduced by Rep. Sparks et introduced by Rep. Gagliardi on 10/5/89 and referred to al on 10/30/89 and referred to Committee on Taxation. Committee on Transportation. HB 5248 - Enacts the landowners liability act intended HB 5145 - (Same as SB 580) Amends general property to limit the duty of care and the civil liability of owners of tax act to clarify authorization of bond millage voted before land under certain circumstances -- introduced by Rep. September 30 -- introduced by Rep. Jondahl on 10/9/89 Law et al on 11/I/89 and referred to Committee on and referred to Committee on Taxation. Judiciary. HB 5166 - (Same as SB 607) Increases real estate HB 5249 - Amends the revised judicature act of 1961 transfer tax rates -- introduced by Rep. Kosteva et al on to include provisions regarding the landowners liability act 10/11/89 and referred to Committee on Taxation. -- introduced by Rep. Law et al on 11/1/89 and referred to Committee on Judiciary. liB 5181 - Creates rental housing quality enforcement act to provide remedies for certain violations relating to the HB 5250 - Amends the recreational user statute to con- health, safety and welfare of occupants of rental residen- form to land owners liability act -- introduced by Rep. Law tial property -- introduced by Rep. J. Young, Jr. et al on et al on 11/1/89 and referred to Committee on Judiciary. 10/16/89 and referred to Committee on Urban Affairs. HB 5258 - Enhances penalties and expands parties HB 5182 - Amends the housing law of Michigan to prohibited from unlawful disposal, possession and pro- change method of adoption of housing law by local govern- duction of liquid industrial waste -- introduced by Rep. mental units -- introduced by Rep. J. Young, Jr. et al on Kosteva on 11/6/89 and referred to Committee on Con- 10/16/89 and referred to Committee on Urban Affairs. servation, Recreation & Environment. HB 5183 - Amends revised judicature act of 1961 to include violation of rental housing quality enforcement act HB 5265 - Amends emergency preparedness act to establish an emergency management system -- introduced as basis for summary proceedings actions -- introduced by Middaugh on 11/6/89 and referred to Committee on by Rep. J. Young, Jr. et al on 10/16/89 and referred to Committee on Judiciary. Conservation, Recreation & Environment. HB 5201-5205 - Requires various financial institutions HB 5279 - Amends subdivision control act of 1967 to to pay interest on escrow accounts -- introduced by Rep. provide for a state plat fee of $300 plus $30 for each lot Jondahl on 10/18/89 and referred to Committee on Cor- over four lots included in plat -- introduced by Rep. Ostling porations & Finance. et al on 11/13/89 and referred to Committee on Appro- priations. HB 5216 - (Same as SB 603) Amends uniform com- mercial code to increase fees for searches -- introduced HB 5280 - Amends the housing law of Michigan to allow by Rep. Pridnia et al. on 10/23/89 and referred to Com- cities, townships and villages to maintain or demolish aban- mittee on Towns & Counties. doned residential property and provides procedures for reimbursement -- introduced by Rep. Bennane et al on lib 5218 - Provides that the recording of a levy, attach- 11/13/89 and referred to Committee on Towns & ment, lien, or other instrument of encumbrance shall not Counties. Winter, 1988 -- Page 258 MICHIGAN REAL PROPERTY REVIEW

HB 5282 - Provides that corporate officers shall be SB 539-541 - Prohibits municipalities from enacting personally liable for delinquent property taxes of real estate ordinances preventing residents from giving or receiving rental corporations under certain circumstances -- intro- music lessons in own home -- introduced by Sen. Faxon duced by Rep. Bennane et al on 11/13/89 and referred on 9/27/89 and referred to Committee on Local Govern- to Committee on Taxation. ment & Veterans.

HB 5284 - Amends housing law of Michigan to allow SB 566 - Amends general property tax act to exempt state to place lien on abandoned homes, uncared for wetlands and other property prohibited for development homes, or homes upon which local government have by DNR -- introduced by Sen. DiNello et al on 10/4/89 demolished -- introduced by Rep. Leland et al on and referred to Committee on Finance. 11/13/89 and referred to Committee on Urban Affairs. SB 571 - (Same as HB 5137) Allows certain townships HB 5297 - Amends low-level radioactive waste au~thority to enact sign control ordinances more restrictive than state act to prohibit disposal within 50 miles of the Great Lakes law -- 10/4/89, Committee on Local Government & -- introduced by Rep. London et al on 11/15/~89 and Veterans; 11/28/89, general orders. referred to Committee on Conservation, Recreation & Environment. SB 572- Amends the low-level radioactive waste authority act to require the authority to purchase all real HB 5303 - Requires facilities for the jurisdiction of, but property necessary for the construction and operation of not owned and operated by, the department of corrections disposal site and a buffer zone within 500 feet of the to comply with local zoning ordinances -- introduced by disposal site, at the fair market value of the property -- Rep. Randall on 11/15/89 and referred to Committee on introduced by Sen. M. Smith et al on 10/4/89 and referred Corrections. to Committee on Natural Resources & Environmental Affairs. HB 5304-5305 - Amends the Michigan penal code to provide for a racketeer influence and corrupt organization SB 580 - (Same as HB 5145) Amends general property (RICO) statute and to provide for the forfeiture of property tax act to clarify authorization of bond millage voted before obtained through or related to racketeering -- introduced September 30th -- 10/10/89, Committee on Finance; by Rep. Bullard on 11/15/89 and referred to Committee 10/24/89, general orders; 10/24/89, third reading, on Judiciary. passed; 10/24/89, Committee on Taxation; 10/25/89, second reading; 10/26/89, third reading; 10/30/89, SB 24 - Requires that decisions and opinions of resi- passed; 10/31/89, ordered enrolled; 10/31/89, presented dential property and small claims division of tax tribunal to Governor; 11/1/89, approved by Governor as Public be issued in writing within a reasonable period of time, Act No. 205. including a concise statement of facts and conclusions of SB 602 - Creates the great lakes water use restriction act law, and increases jurisdictional amounts -- 1/11/89, to require registration reporting by certain water users -- Committee on Local Government & Veterans; 11/28/89, general orders with amendments. 10/11/89, Committee on Natural Resources & Environ- mental Affairs; 11/8/89, general orders with substitute; SB 485- Amends aeronautics code to prohibit 11/28/89; third reading with substitute. townships from purchasing, constructing or expanding an SB 603 - (Same as HB 5216) Amends uniform com- airport adjacent to real property that is zoned residential mercial code to increase fees for searches -- introduced -- 6/8/89, Committee on Economic Development; by Sen. Ehlers on 10/17/89 and referred to Committee 11/7/89, general orders with substitute; 11/8/89, imme- on Local Government & Veterans. diate passage; 11/8/89, substituted, passed; 11/8/89, Committee on Appropriations. SB 607 - (Same as HB 5166) Increases real estate transfer tax rates -- introduced by Sen. V. Smith on SB 532 - Provides general amendments to nonprofit 10/17/89 and referred to Committee on Local Govern- corporation act -- 7/27/89, Committee on Commerce ment & Veterans. and Technology; 10/18/89, general orders with amend- ment(s), 10/24/89, third reading with amendment(s); SB 627 - Amends income tax act of 1967 to increase 10/31/89, passed; 10/31/89, Committee on Corpora- maximum property tax credit -- introduced by Sen. Dingell tions & Finance. et al on 10/24/89 and referred to Committee on Finance. MICHIGAN REAL PROPERTY REVIEW Winter, 1989 -- Page 259

SB 629 - Amends the liquor control act to provide for SB 657-658 - Requires prepurchase site evaluation on civil and criminal penalties for adults providing alcoholic state purchases of land to determine if land is contaminated beverages to minors and minors possessing or attempting -- introduced by Sen. Carl on 11/1/89 and referred to to possess alcoholic beverages -- 10/24/89, Committee Committee on Natural Resources & Environmental Affairs. on Regulatory Affairs; 11/28/89, general orders with substitute. SB 688-691 - Allows townships to control county primary and local roads within township boundaries -- SB 637 - Amends solid waste management act to introduced by Sen. Cropsey on 11/28/89 and referred to prohibit issuance of upgrading license for a land-fill located Committee on Local Government. over an aquifer or within a public water supply wellhead area -- introduced by Sen. Fessler et al on 10/25/89 and SB 692 - Amends solid waste management act to pro- referred to Committee on Natural Resources & Environ- hibit the disposal of used oil -- introduced by Sen. Ehlers mental Affairs. on 11/28/89 and referred to Committee on Natural SB 656 - Provides general amendments to provisions of Resources & Environmental Affairs. the Michigan liquor control act regarding wholesalers and suppliers of beer -- introduced by Sen. Miller on 11/1/89 SB 693 - Prohibits the spreading of waste oil on the and referred to Committee on Regulatory Affairs; 11/1/89 ground for dust control -- introduced by Sen. Ehlers et Committee on Commerce & Technology; 11/28/89, al on 11/28/89 and referred to Committee on Natural general orders. Resources and Environmental Affairs. MICHIGAN REAL PROPERTY REVIEW Winter, 1989 -- Page 261

RECENT DECISIONS

by Joseph Lloyd

Bank of Three Oaks v Lakefront Properties, __ Brittany Park Apartments v Harrison Charter Mich App __; 444 NW2d 217 (1989) Township, __ Mich App __; 443 NW2d 161 (1989) Mortgage Foreclosure -- Interest after sale and prior to Municipal utility -- rate structures redemption The plaintiff, an owner of a multi-unit apartment A note was secured by a mortgage and guaranteed building sought to challenge the rate structure of the by the individual defendants. The note went into default municipal water system as it applied to his building. He and the bank foreclosed the mortgage, bidding the entire claimed that the classification of residential water users into debt at the foreclosure sale. The property was not single unit and multiple unit categories, with different rate redeemed. The bank thereafter sought from the guarantors structures for each, violated the equal protection provisions the amount of interest accrued between sale and the of the constitution. The trial court granted summary running of the redemption period. The trial court held the disposition for the Township. The Court of Appeals individual guarantors liable. The court of appeals reversed. reversed. The Supreme Court reinstated the verdict of the trial court, holding the ordinance constitutional. When the property is purchased at the foreclosure sale for the amount due under the mortgage, the debt is satisfied Buckley Land Corporation v Department of Natural and the mortgage is extinguished. Statute provides that the Resources, ~ Mich App __; 443 NW2d 390 mortgagor is liable for interest and taxes subsequent to the (1989) sale if the mortgage is redeemed, but not otherwise. Since the mortgagor is not liable, it was held that the individual Tax sales -- notice -- constitutionality guarantors were not liable. The land at issue was sold for unpaid property taxes in 1940 and purchased by the State of Michigan in 1942. The state complied with existing procedures at the time. Borg-Warner Acceptance Corporation v Depart- of sale. Under current law, however, that sale would be ment of State __ Mich App __; 444 NW2d 786 void. The court of appeals, affirming the trial court, held (1989) that there was a ten year period of limitations on review of the sale. UCC Searches -- liability for defective search City of Bloomfield Hills v Gargaro, Mich App The question before the court was whether the nominal fee charged by the Department of State for a UCC __, 443 NW2d 494 (1989) search constituted "consideration" such that there might Zoning -- rooftop antennas be an action for breach of contract against the State for a defective search. The Supreme Court held that there was The question before the court was whether the city no consideration and that there was no "mutual assent" zoning code gave the City the power to forbid construction to the formation of a contract, reversing the Court of of a rooftop satellite antenna. Reversing the trial court, the Appeals’ affirmation of the trial court’s award of damages. Court of Appeals held that the rooftop satellite antenna Winter, 1989 -- Page 9.62 MICHIGAN REAL PROPERTY REVIEW

was a "structure" such that a building permit was required. be dismissed. The Court of appeals reversed, holding that It held that the zoning code required screening of the although the Department of Corrections was immune from satellite antenna. It finally held that the right of the local zoning ordinances, that exception would not be municipality to regulate the antenna was not preempted expanded to include cases where a party other than a state by FCC regulation. is to operate the facility.

Cit3, of Boyne Cit~ v Crain, __ Mich App ; Czap v Cox, Mich App ; 445 NW2d 218 446 NW2d 348 (1989) (1989) Right of Way -- Extinguishment -- Impossibility Options agreements -- right of first refusal A railroad held a right of way over city-owned The Plaintiffs father died testate, leaving half his estate property. The railroad went out of business and sold its to the Plaintiff and half to the defendant, his sister, subject rolling stock. The tracks and ties were liquidated for scrap. to the Plaintiff’s "first option to purchase" during his lifetime The right of way was deeded to one of the shardholders any real estate held in the estate. The question before the of the railroad at the time it dissolved. Litigation thereafter court was whether this constituted an option to purchase ensued to determine the interests of the subsequent owners or a right of first refusal. The Plaintiff sought to exercise and of the city in the property. On appeal it was held that his "option" and the trial court granted specific the "right of way" in question was an easement rather than performance. The Court of Appeals, holding that the a fee ownership and that it was abandoned as impossible language created a right of first refusal rather than an to use. Fee simple title therefore reverted to the city. option, reversed the trial court.

City of Detroit v Lucas, __Mich App ~; 446 Davids v Snyder, __Mich App ; 445 NW2d NW2d 596 (1989) 460 (1989) Condemnation -- private use Quiet Title -- Adverse possession The Defendant’s property was subject to condemna- tion proceedings as part of the Theater District Project in The question before the court was whether the Detroit. The question at trial was whether the taking was Plaintiff’s occupation of undeveloped property was suffi- for public or private purpose. The trial court found there ciently open and notorious to serve as the basis for a claim to be a public purpose. The defendant missed filing a timely of adverse possession. On the facts of the case, the court appeal by a matter of hours. A divided Court of Appeals of appeals held that it did. held that, under the quick-take provisions of the condemnation statute, the filing of a timely appeal was DeMello v McNamara, __ Mich App __; 444 jurisdictional. In dissent, Judge Beasley would have heard NW2d 149 (1989) the appeal on the merits and invited the Supreme Court again to reexamine the Poletown decision. Real Estate Brokers -- Commissions A real estate broker brought an action for a commis- Cit~ of biuskegon Heights v Moseler, Mich sion. During the listing period the broker had once shown App ; 444 NW2d 145 (1989) the property to the purchaser. The listing agreement called Zoning -- Department of Corrections for payment of a commission if the property were sold or leased during the contractual time period. Within the time The defendant was a.private, non profit corporation period the parties entered into a sales agreement, with a which contracted to maintain a private facility to be used $10,000 earnest money deposit, which called for the as a residential center in conjunction with probation of deposit to be forfeit if the sale did not close, but which did inmates. The center was to be placed in a commercially not give the seller a right to seek specific performance or zoned district. The Plaintiff brought suit, claiming that the actual damages. The trial court and the court of appeals proposed use violated the municipal zoning ordinace. The both considered this contract to be in the nature of an trial court granted the summary disposition in favor of the option and not a binding agreement of sale. Summary Defendant, holding that, since the program was totally disposition in favor of the defendants was therefore funded by the Department of Corrections, the suit must affirmed. MICHIGAN REAL PROPERTY REVIEW Winter, 1989 -- Page 263

DeWald v Isola__ Mich App ~; 444 NW2d sent the tenant a copy of the old lease with lines drawn 620 (1989) through certain provisions. The question before the court was whether that constituted a written agreement between Statute of Frauds -- Specious claims -- sanctions the parties which satisfied the statute of frauds. After jury verdict in favor of the Plaintiff, the Court of Appeals The Defendants had listed their property for sale. affirmed, holding that whether or not the requirements of Plaintiff offered to purchase it. The Broker discussed the the statute were met in present case was a question for offer with the owner and there is a factual dispute over the finder of fact. whether she orally accepted. The broker thereafter printed the owner’s name on the acceptance line with the nota- tion "per ph call" and told the Purchaser that the agree- ment had been orally accepted. The Seller subsequently Krause v Griffis, __ Mich App ~; 443 NW2d rejected the offer, never signing the purchase agreement. 444 (1989) The Purchaser brought suit for specific performance. After filing suit there was scheduled a motion for Usury -- business purpose exception temporary injuction prohibiting the sale of the property. The Seller’s attorney called the Purchaser’s attorney, citing Plaintiffs sold to defendants on land contract, charg- the statute of frauds and citing and reading specific case ing interest at 15% per annum. They filed an action for law indicating why there was not a contract. He demanded declaratory judgment that the interest rate was not usurious that the complaint be withdrawn. It was not withdrawn. under the business purpose exception to the usury act. At hearing on the merits, the complaint was dismissed but MCLA 438.61; MSA 19.15(71). The defendants operate the Defendant’s request for sanctions was denied. The the property as an adult foster care facility. The contract Defendants appealed and the court of appeals reversed, was sale was executed the day before the "business pur- holding that the trial court must assess sanctions both pose" exception went into effect. The borrower refused to against the Plaintiff and against his attorney. execute an affidavit of business purpose. The trial court granted summary judgement for the Plaintiffs, holding that the business purpose exception applied. The act was Griffin v City of Detroit, __ Mich App ~; 443 applied retroactively. The Court of Appeals affirmed, NW2d 406 (1989) holding that the exception applied where all of the parties Personal injury -- low income housing to the transaction knew that the proceeds of the loan would be applied to a business purpose. Plaintiff’s decedent drowned in her bathtub. The dece- dent lived in a low income housing project operated by the defendant city. In a personal injury action, the trial court Macenas v Village of Michlana, ~ Mich ~, granted summary disposition on the question of govern- 466 NW2d 102 (1989) mental immunity. The Court of Appeals affirmed. The question before the court was whether the housing pro- ject was a public building with the meaning of MCL Zoning -- Review -- questions of law and fact 691.1406; MSA 3.996(I06). The court held it was not. The public building exception is based on accessibility of The question before the Supreme Court was the members of the public to the situs of the accident. Where proper standard of review for the Court of Appeals to apply the accident occurred in the privacy of a rented unit, it was in reviewing a trial court’s decision on a zoning case. The held that it did not occur in a public place. court held that the Court of Appeals is not limited in its review by the pleadings alone. The courts must defer to determinations of fact made by an appeals board, if Jim-Bob v Mehnling,, ~ Mich App ~; 443 supported by competent, material evidence. It need not, NW2d 451 (1989) however, defer on questions of law. The question before Leases -- statute of frauds the court was how to review mixed questions of law and fact. In a detailed opinion, the court worked through The parties were landlord and tenant pursuant to a analysis of the standard of review. Courts must follow a signed, written lease. At the time of renewing the lease, more complicated process, and that was the subject of the the parties agreed orally on terms. The landlord thereafter instant decision. Winter, 1989 -- Page 264 MICHIGAN REAL PROPERTY REVIEW

Pulleyblank v Cape, __ Mich App ~; 446 Richardson v Jackson County, __ Mich __ NW2d 345 (1989) 443 NW2d 105 (1989)

Mortgages -- foreclosure -- satisfaction of debt Personal injury -- governmental immunity Plaintiff mortgaged two properties as security for a single debt. After default, a foreclosure by advertisement Plaintiff’s decedent drowned in a public swimming area was held. Separate sales in separate counties were held of a lake. There was a sharp drop-off near the site of the on both properties. The entire debt was bid at the sale of drowning. The Plaintiff claimed that the drop-off was not the first property and at the sale of the second property, marked as required by the Marine Safety Act, and the even though, allegedly, the fair market value of the pro- county was therefore not protected by governmental perty was far less than the debt. The trial court h~d that immunity. The trial court, affirmed by the Court of Appeals, bidding the entire debt at the sale of the first property denied the County’s motion for summary disposition. A satisfied the debt. The court of appeals affirmed. divided Supreme Court reversed, holding that the activity of operating the beach outside the requirements of the The thrust of the Defendant’s argument in the court statute did not result in making the operation of the beach of appeals was that the right to a deficiency judgment was based on the fair market value of the property, rather than an unauthorized act. The municipality was therefore on the amount bid at sale in relation to the debt. The argu- immune from suit. merit was made, by implication, based on language in MCLA 600.3280, MSA 27A. 3280 which allows the defen- dant in an action for deficiency, to plead and prove the true value of the property. The court rejected this Stevens v Drekich, ~ Mich App __, 443 argument. NW2d 401 (1989)

Premises liability -- nuisance -- maintenance of highway Rand v Knapp Shoe Stores,, Mich App __; easement 444 NW2d 156 (1989)

Landlord/Tenant -- Premises Liability The action for personal injuries arose out of injuries sustained in a motor vehicle accident. The question before The Plaintiff’s son was injured in a public alley adja- the court was whether the owners of land situated adjacent cent to a commercial property leased by the landlord and to the scene of the accident had a duty to take precautions tenant defendants. The question was whether either the so that a tree located in the grassy area between the street landlord or tenant had a duty to use and maintain their curb and the sidewalk would not obstruct a motorist’s view own property so as to prevent injury to third parties on of a yield sign. The trial court held that there was no such land adjacent to their own. The trial court and the court duty and granted summary disposition in favor of the of appeals held there was no such duty. defendant. The Court of Appeal affirmed.

Under principals of premises liability, the question was Read v Meijer, lnc, Mich App ~; 444 whether the defendant had legal possession and control NW2d 151 (1989) over the property. The tree in question is 19 feet from the Premises Liability center of the roadway. The width of the highway right-of- way was 66 feet. The property owner may have a rever- The question before the court was whether a store sionary interest, but those rights are not possessory in patron could recover for injuries sustained as a result of nature, precluding an action against the property owner. alleged failure to provide adequate security in the store It was argued by the Plaintiffs that liability for negligence parking lot. Following a long line of cases, both the trial may be predicated on breach of duties set forth in various court and the Court of Appeals dismissed the Plaintiff’s ordinances. It was held, however, that if no duty exists, case. violation of the ordinance was not actionable. MICHIGAN REAL PROPERTY REVIEW Winter, 1989 -- Page 265

Selective-Group Inc. v City of Farmington Hills, Gitler et al. v Oakland Clerk et al., __ Mich App __ Mich App ~; ~ NW2d __ (1989) NW2d __ (1989) Zoning of Lands -- Reasonableness Redemption Period -- One-Year Period Applies Though the Plaintiff claimed that the Defendant City’s Zoning Ordinance was unreasonable and confiscatory, the Where the Defendant declared their intention to ordinance was held to be valid because it did not render occupy the property within 15 days after receiving the the Plaintiff’s property valueless. affidavit of vacancy from the Plaintiff, the Plaintiff failed The Plaintiff petitioned the Defendant City to rezone to satisfy the statutory requirements for presumptive abandonment. a five-acre parcel from a residential district to a commer- cial district. The Zoning Board denied the request. The Plaintiff claimed that the zoning of its land for residential The defendants property was foreclosed by advertise- purposes was unreasonable because the adjacent land was ment. The Plaintiff purchased the property at a sheriff’s sale. zoned commercial. The Court of Appeals pointed out that The Plaintiff inspected the property several times, found the adjacent land was primarily zoned for office use, a less it to be unoccupied, and filed an affidavit of vacancy and intensive use than commercial. Some of the surrounding mailed a copy of it to the Defendants. Within 15 days the land was also used for residential purposes. Defendants told the Plaintiff that they intended to occupy the property until it was sold. After another inspection, the The Defendant’s appraiser testified that the land could Plaintiff alleged that the property was still unoccupied. The be sold for residential development for $73,000. The Plaintiff sued to quiet title, claiming the 30-day redemp- Plaintiff had paid $23,000 for the land. The Court of tion period for abandoned property had expired. Appeals therefore held that the residential zoning of the land had not rendered it worthless. Since the Plaintiff could still realize a profit from the land, though not as much as The Circuit Court held that the one-year period of if the land were zoned commericial, the ordinance was held redemption for property foreclosed and sold by advertise- not to be confiscatory. ment applied. The Court of Appeals affirmed. Since the Defendants gave notice of their intent to occupy the property within 15 days, the Court held that the lands were Eveline Township v H&D Trucking Co., Mich not abandoned as defined by the statute, MCL 600.3241a. App __; ~ NW2d ~ (1989) Zoning of Lands -- Zoning Ordinance -- Exclusionary Zoning Relllnger v Bremmeyr et al.,~ Mich App ~; __ NW2d ~ (1989) The defendant owned a parcel of land on Lake Charlevoix that had been used as a deep water port for many years. Under the Plaintiff’s Zoning Ordinance, the Real Estate Commissions -- Counter-Offer Revocable land was zoned commerical. The zone did not permit the Defendant to use the land as a port facility. The Defendant Even though the Defendants-Sellers gave the Plaintiff- sought to use the land as a port facility but the Plaintiff Broker three days to obtain acceptance of their counter township sought to enjoin such action. offer, they could revoke the offer without liability for Plaintiff’s lost real estate sales commission. The Court of Appeals held that under Section 27a of the Township Rural Zoning Act, a township zoning ordinance cannot totally exclude a lawful land use. The The Court of Appeals held that in the absence of a Court held that the operation of a port facility was a special agreement, the general rule is that a broker is necessary and lawful activity within the Township. None deemed to have earned his commission when the seller of the zones established under the Township Zoning and purchaser enter into a binding purchase agreement. Ordinance permitted port facilities. As a result, the Circuit Although in this instance the Plaintiff had obtained Court held that the port facility use proposed by the Defen- acceptance of the Defendants’ counter offer, no binding dant was unlawfully excluded under the Zoning Ordinance agreement was formed because the counter offer was and the Court of Appeals affirmed. revoked before it was accepted. Winter, 1989 -- Page 266 MICHIGAN REAL PROPERTY REVIEW

Fischer-Flack Inc. v Churchfleld et al., Mich Bryant et aL v Brannen et aL, __ Mich App App ~; ~ NW2d ~ (1989) NW2d __. Construction Lien -- Notice of Furnishing Labor or Material Landlord-Tenant -- Premises Liability -- Agency

Even though the Plaintiff-Supplier’s notice of furnish- The Plaintiff, a tenant of the Defendant, argued with ing was premature, the notice perfected the Plaintiff’s the manager of the Defendant’s apartment building on the construction lien against the Defendants. The Court of premises, and during the course of the argument, the apart- Appeals reversed the Circuit Court’s rejection of the Plain- ment manager fired a gun from his nearby apartment. The tiff’s notice of furnishing. bullet hit the Plaintiff and severly injured him. The Plaintiff The Construction Lien Act provides that subcontrac- sued the apartment manager and the Defendant property tors or suppliers must send a notice of furnishing within OWFler. 20 days after furnishing the first labor or material. The Circuit Court held that the Plaintiff’s notice was defective The Court of Appeals held that the Defendant because it was sent prematurely, in that no supplies had Landlord had no liability for the Plaintiff’s injuries and that yet been furnished to the Defendants. The Court of the Circuit Court should have directed a verdict for the Appeals disagreed, stating that although the Plaintiff’s Defendant. The Court held that landlords can be liable for notice of furnishing was premature, it complied substan- crimes committed in areas within their control, but in this tially with the notice requirements of the Construction Lien case, the crime actually occurred in the Plaintiff’s apart- Act. ment and the apartment of the landlord’s apartment manager, and therefore not on premises within the control Turunen v Department of Natural Resources et al., of the landlord. ~ Mich App ______; ~ NW2d ~ (1989) Mineral Rights -- Reservation of Limestone by State of Michigan Village of Kalkaska v Shell Oii Company, Mich App ~; ~ NW2d ~. The Court of Appeals held that the State of Michigan retained rights to limestone located on the Plaintiff’s land, where the State was authorized by statute to reserve Platted Streets -- Underlying Oil and Gas mineral rights in any land it conveyed and where the Michigan Supreme Court had held that the term minerals The Supreme Court affirmed a holding by the Court includes limestone. of Appeals to the effect that municipalities in Michigan have no proprietary interest in oil and gas underlying platted Andre v Fink et al., Mich App ~; ~ streets. The Court held that lands dedicated to the use of NW2d ~ (1989) the public under certain early Michigan plat acts did not include title to oil and gas underlying the dedicated lands. Tax Deeds -- Notice Requirement The Court held that the title to such oil and gas is vested in the abutting property owners or in favor of any prior MCL 211.140(1) requires that notice of a tax sale be owners in the chain of title who have reserved the same. given to record title holders in the regular chain of title and also to those who derive title from a tax deed. Where the Defendants failed to notify the last grantees in the "regular The Supreme Court rejected the Defendant Village’s chain of title" they did not comply with the notice require- argument that a statutory dedication of land under the plat ment. The Court of Appeals pointed out the the Michigan acts in question constituted an absolute fee, absent any courts have long required strict compliance with the notice express reservation. The Court concluded that the dedica- requirement because the effect of tax sale proceedings is tion of the land under the stated plat acts did not include to divest the true owners of their title. Since the Defen- all potential uses of the property. The case did not dants had not complied with the notice requirement, the specifically involve the 1929 or 1967 plat acts, but there Circuit Court held that the six-month period of redemp- are some similiarities in the language regarding dedicated tion never began to run and that therefore the Plaintiff’s lands, in these more recent plat acts, as compared to the redemption was timely. The Court of Appeals affirmed. early plat acts at issue in the case. MICHIGAN REAL PROPERTY REVIEW Winter, 1989 -- Page 267

Davids v Davis et al., __ Mich App __; __ The Defendant City Council stated that it would approve NW2d __ (1989) the Company’s site plan if five conditions were met. One of the conditions required that the Company dedicate a Record Title -- Adverse Possession strip of its land to the City for a future street right of way. The Plaintiff asked the City to remove this condition, but The parties disputed ownership of a portion of a parcel the City Council declined. The Company did not appeal of land. The Plaintiff claimed record title through deeds the decision to any other body. The City later condemned given in 1955 and 1961. The Defendants claimed record the strip of land in question and paid the Plaintiff for it. title to the parcel as heirs of their father, though there was Plaintiff, however, pursued a claim under 42 USC 1983, no probate records showing descent of full title to the despite the condemnation, contending that the condition property from their father’s ancestor to their father. requiring the dedication of the strip of land was Plaintiff filed a quiet title action to establish his owner- unconstitutional. ship. The Circuit Court found that none of the parties had The Supreme Court stated that because no final deter- full record title to the property, but determined that the ruination by the City had been made on all five of the Plaintiff had ownership by adverse possession. The Court conditions relating to the site plan, the Company had failed of Appeals affirmed. to obtain a final decision on the plan and that therefore The Court pointed out that the Defendants lacked the case was not ripe for ajudication. record title to the property, and that to establish their title The majority opinion stated that although the case had it was necessary for them to prove that their father had been tried as a "regulatory taking due process claim", it acquired the title by descent from his ancestor, their grand- was not necessary to determine whether a taking had father. No appropriate probate records to establish any such occurred. The Court said that the City Council had inheritance were introducted in evidence. Based on the imposed, in addition to the possibility improper dedication record established at the trial, the Court of Appeals requirement, four other conditions which were valid. concluded that the Plaintiff’s possession of the property satisfied the various elements of adverse possession. The Court said that until all five conditions relating to approval of the site plan were resolved, "it is impossible to accurately determine the extent to which the Plaintiff’s Mich Electro-Tech inc. v H. F. Campbell et ai .... land retained any reasonable beneficial use or the extent App __; __ NW2d __ (1989) to which the Plaintiff’s expectation interest had been Taking of Real Property -- Section 1983 Claim destroyed:’ The Court stated that Congress did not intend that 42 USC 1983 be an "immediate" tort recovery act for The Plaintiff, a manufacturer of electronic parts, every person adversely affected by a local agency’s initial sought to expand its manufacturing facility on its own land. zoning or building decision. MICHIGAN REAL PROPERTY REVIEW Winter, 1989 -- Page 269

CONTINUING LEGAL EDUCATION

by Arlene R. Rubinstein Administrative Assistant

HOMEWARD BOUND

The Real Property Law Section’s thirteenth Homeward Bound Series continues in January with the program entitled "Commercial Leasing from a Smaller Tenant’s Point of View" which will be presented by Michael W. Maddin of Maddin, Hauser, Wartell, Roth, Heller & Pesses, Kim T. Capello -- Law Offices of Kim T. Capello, Dennis M. Gannan of Dykema Gossett, and Lawrence R. Shoffner of Jaffe, Snider, Raitt & Heuer. William B. Dunn of Clark, Klein & Beaumont and Gary A. Taback of Sommers, Schwartz, Silver & Schwartz will present the February program entitled "Attorney Opinions in Real Estate Financing Transactions" and Roger Cook and Richard S. Soble of Honigman Miller Schwartz and Cohn will present "Current Federal Income Tax Changes Affecting Real Estate Transactions" in March.

SELECTED ISSUES IN REAL ESTATE FOR THE 1990’s

There is still time to register for the Thirteenth Annual Winter Conference being held at WALT DISNEY WORLD®, Orlando, Florida, March 7-11, 1990. This conference will focus on selected issues pertinent to the Michigan real estate lawyer in the 1990’s. The first day of the conference will be devoted to a discussion led by John W. Madden, Jr. President of John Madden Company, Ltd., a real estate company of national scope with headquarters in Denver, Colorado. Mr. Madden has recently completed construction of a 30-story office tower at 150 Jefferson Avenue in downtown Detroit and is finalizing plans for a second building to be known as Firehouse Plaza. Mr. Madden will discuss commercial real estate development in the 1990’s, with a focus on current and emerging financing techniques as well as other issues such as governmental relations and tenant selections. Mr. James M. Tervo of Dickinson, Wright, Moon, Van Dusen & Freeman will discuss the legal issues with which a developer’s attorney is concerned during the initial stages of development and during loan commitment negotiations. Mr. David Sibbold, a principal of Proctor & Associates, a highly respected mortgage banking firm with head- quarters in Michigan, will discuss the process of putting the borrower and lender together, the underwriting concerns of the permanent lender, and when and why various options such as equity kickers and interest rate resets are utilized. The second and third day of the conference will be directed to particular legal issues of importance to Michigan real estate lawyers. Speakers will include William Van’t Hof of Varnum, Riddering, Schmidt & Howlett, the former Chair- person of the Condominium Committee of the Real Property Law Section, who will discuss site condominiums. The ¯ conference chairperson, Stephen E. Dawson of Dickinson, Wright, Moon, Van Dusen & Freeman, will examine selected issues in commercial lease negotiations, focusing on a practical approach to these issues. John C. Murray, Regional Counsel for Travelers Realty Investment Company, a leading real estate lender, will examine legal issues relating to participating mortgages and equity kickers.

The Section has been working with Delta Airlines and Kathie Morenelli at Pointe Travel in Grosse Pointe in secuirng airline reservations. Seats can be reserved on a first-come, first-served basis. Please call Kathie at Pointe Travel 1-313-884-3172 for further travel information. We have rooms at the Contemporary Resort Hotel at $185 and $220 per night, the Polynesian Village Resort at $175 per night and the Grand Floridian Resort-at $205 per night. (Please add 6% sales Tax and 4% resort Tax.)

For more information, please call Arlene Rubinstein, Conference Coordinator at 313-644-7378. (A registration form has been provided elsewhere in this issue). Winter, 1989 -- Page 270 MICHIGAN REAL PROPERTY REVIEW

FOURTEENTH ANNUAL SUMMER CONFERENCE BOYNE HIGHLANDS

The 1990 Summer Conference will be held at Boyne Highlands, Boyne Falls from Wednesday, July 25 through Saturday, July 28, 1990. Please set aside these dates on your calendar. Details will be mailed in March.

COURSE CALENDAR Set forth below is a schedule of continuing legal education courses sponsored or co-sponsored by the Real Property Law Section through April 1990. Key: HB = Homeward Bound ICLE -- Courses sponsored by The Institute of Continuing Legal Education Date Location Program Topic

January 16 L. V. Eberhard Center HB Commercial Leasing From A Smaller Grand Rapids Tenant’s Point of View January 18 Management Education Center HB Commercial Leasing From A Smaller MSU -- Troy Tenant’s Point of View February 13 L. V. Eberhard Center HB Attorney Opinions in Real Estate Grand Rapids Financing Transactions

February 15 Management Education Center HB Attorney Opinions in Real Estate MSU -- Troy Financing Transactions March 7-11 WALT DISNEY WORLD® 13th Annual Selected Issues in Orlando, Florida Winter Conference Real Estate for the 1990’s March 16 L. V. Eberhard Center ICLE Fundamentals of Real Estate Grand Rapids Transactions

March 20 L. V. Eberhard Center HB Current Federal Income Tax Changes Grand Rapids Affecting Real Estate Transactions March 22 Management Education Center HB Current Federal Income Tax Changes MSU -- Troy Affecting Real Estate Transactions March 23 Ramada Inn ICLE Fundamentals of Real Estate Southfield Transactions April 5 To Be Announced ICLE Real Property Remedies Grand Rapids April 24 L. V. Eberhard Center HB Operating Development and Grand Rapids Reciprocal Easement Agreements April 24 To Be A6nounced ICLE Real Property Remedies Southfield April 26 Management Education Center HB Operating Development and MSU -- Troy Reciprocal Easement Agreements MICHIGAN REAL PROPERTY REVIEW Winter, 1989 -- Page 271

VIDEO SERIES

All videos will begin at 3:30 p.m. and end at 6:00 p.m.

Lender Liability - Commercial Leasing From A An Update Smaller Tenant’s Point of View

January 10, 1990 Ann Arbor February 7, 1990 January 4, 1990 Bay City February I, 1990 January 4, 1990 Detroit February 1, 1990 January 18, 1990 Kalamazoo February 15, 1990 January 10, 1990 Lansing February 7, 1990 January 11, 1990 Traverse City February 8, 1990

Attorney Current Federal Income Tax Changes Opinions Affecting Real Estate Transactions

March 14, 1990 Ann Arbor April 18, 1990 March I, 1990 Bay City April 5, 1990 March 1, 1990 Detroit April 5, 1990 March 15, 1990 Kalamazoo April 26, 1990 March 14, 1990 Lansing April 18, 1990 March 15, 1990 Traverse City April 12, 1990 MICHIGAN REAL PROPERTY REVIEW Winter, 1989 -- Page 273

STATE BAR OF MICHIGAN REAL PROPERTY LAW SECTION THIRTEENTH ANNUAL WINTER CONFERENCE SELECTED ISSUES IN REAL ESTATE FOR THE 1990’S WALT DISNEY WORLD® ¯ ORLANDO, FLORIDA ¯ MARCH 7-11, 1990

Thursday, March 8, 1990 ¯ 8:00 a.m.- 11:00 a.m.

Introductions: -- Stephen E. Dawson, Conference Chairperson Dickinson, Wright, Moon, Van Dusen & Freeman Bloomfield Hills, Michigan

Commercial real estate John W. Madden, Jr. development in the 1990’s John Madden Company, Ltd. Denver, Colorado

Legal issues during the James M. Tervo development stage Dickinson, Wright, Moon, Van Dusen & Freeman Bloomfield Hills, Michigan

Friday, March 9, 1990 ¯ 8:00 a.m. - 11:00 a.m.

Putting the borrower and David Sibbold lender together: a broker’s Proctor & Associates perspective Troy, Michigan

Participating mortgages and John C. Murray equity kickers: legal issues The Travelers Companies Chicago, lllinois

Saturday, March 10, 1989 ¯ 8:00 a.m. - 11:00 a.m.

Site condominiums William Van’t Hof Varnum, Riddering, Schmidt & Howlett Grand Rapids, Michigan

Selected issues regarding Stephen E. Dawson commercial leases Dickinson, Wright, Moon, Van Dusen & Freeman

(tear off here and mail) Thirteenth Annual Winter Conference Registration Form

Name Address City State Zip Phone We hope you will take advantage of the low registration fee of $50.00 for Section members and $65.00 for Non-members to attend this conference. Make checks payable to: Real Property Law Seminars and Mail to: P.O. Box 473, Birmingham, MI 48012. For further information, call Arlene Rubinstein at 313/644-7378. MICHIGAN REAL PROPERTY REVIEW Winter, 1989 -- Page 275

1990 PUBLICATION SCHEDULE

ISSUE SECTION COMMITTEE PERSON RESPONSIBLE (and Council Coordinator)

SPRING Commercial Leasing and Management of Real Estate ...... Michael Maddin (Dawson) Legislation ...... Gregory L McClelland and Gaff A. Anderson (Tervo)

Oil, Gas and Natural Resources ...... Lawrence Elkus (Brown) Public Financing ...... Timothy D. Sochocki (Nix) Titles and Conveyancing ...... Willard G. Moseng (Pennings)

SUMMER Construction ...... Ronald P. Strote (Pennings) Professional Responsibility ...... William C. Roush (Tervo)

Residential Transactions ...... Robert M. Chimovitz (Wartell)

State and Local Taxation ...... Samuel McKim (Shumate)

Zoning and Land Use ...... David W. Berry (Wartell)

FALL Broker and Mortgage Services ...... Gregory L. McClelland and Gaff A. Anderson (Tervo) Condominiums, PUDs and Cooperatives ...... Jeffery R. Jones and James Candler (Meyer)

Eminent Domain ...... Boris K. Yakima (Burgoyne) Federal Tax Aspects of Real Estate Transactions ...... William D. Acker (McLaughlin) Water Law ...... Ronald T. Barrows (Deems) (Retiring Chairman’s Report) ...... James Tervo

WINTER Bankruptcy, Debtor/Creditor Rights ...... Robert D. Mollhagen (Simpson) Environmental Law and Energy ...... Gary A. Trepod (Shumate) Mortgages and Related Financing Devices and Security Interests .... Richard Rankin (Nix) Partnerships, Joint Ventures and other Investment Vehicles ...... Michael Mulcahy (Simpson) MICHIGAN REAL PROPERTY REVIEW Winter, 1989 -- Page 277

NOTICE!

TO ALL MEMBERS OF THE REAL PROPERTY SECTION

THE NEXT MEETING OF THE STATE AND LOCAL TAX COMMITTEE OF THE REAL PROPERTY SECTION WILL FEATURE A PANEL DISCUSSION

ON

"THE IMPACT OF REAL PROPERTY ENVIRONMENTAL PROBLEMS WITH REGARD TO PROPERTY TAXATION"

WHEN: JANUARY 16, 1990

TIME: FROM 3:00 TO 5:00 P.M.

WHERE: DETROIT OFFICES OF MILLER, CANFIELD, PADDOCK AND STONE 150 WEST JEFFERSON AVENUE DETROIT, MICHIGAN 25TH FLOOR

ALL MEMBERS OF THE REAL PROPERTY SECTION ARE INVITED TO ATTEND. PLEASE CONFIRM YOUR ATTENDANCE BY JANUARY 4, 1990. CALL BETH O’BRIEN AT 963-6420 MICHIGAN REAL PROPERTY REVIEW Winter, 1989 -- Page 279

SECTION COMMITTEE ROSTER 1989- 1990

STANDING COMMITTEES OF THE REAL PROPERTY LAW SECTION

BUDGET AND FINANCE CONTINUING LEGAL EDUCATION Nyal D. Deems, Chairperson 171 Monroe, N.W., Suite 800 Lawrence D. McLaughlin, Chairperson Grand Rapids 49503 2290 First National Building Detroit 48226 James R. Brown Stephen E. Dawson 200 Ottawa Ave. N.W., Ste. 700 Grand Rapids 49503 525 N. Woodward Ave., Box 509 Bloomfield Hills 48013 Stephen E. Dawson Nyal D. Deems 525 N. Woodward Ave., Box 509 171 Monroe, N.W., Suite 800 Bloomfield Hills 48013 Grand Rapids 49503 James M. Tervo Bethany Hawkins 800 First National Building 525 N. Woodward Ave., Box 509 Detroit 48226 Bloomfield Hills 48013 Denise J. Lewis ON COMMITTEES 2290 First National Building Nyai D. Deems, Chairperson Detroit 48226 171 Monroe Ave. N.W., Suite 800 James M. Marquardt Grand Rapids 49503 125 Exchange Place Kalamazoo 49007 James R. Brown 200 Ottawa, N.W., Suite 700 Sandra Lea Meyer Grand Rapids 49503 400 Renaissance Center, 35th Floor Detroit 48243 Sandra Lea Meyer 400 Renaissance Center, 35th Floor Roger J. O’Toole Detroit, MI 48243 5455 Corporate Drive, Suite 300 Troy 48098 Allen Schwartz Bruce N. Parsons 150 W. Jefferson 800 Calder Plaza Building Detroit 48226 Grand Rapids 49503 Thomas C. Simpson Allen Schwartz 100 W. Long Lake Rd., Suite 210 150 W. Jefferson Bloomfield Hills 48013 Detroit 48226 James M. Tervo Thomas C. Simpson 800 First National Building 100 W. Long Lake Rd., Ste.. 210 Detroit 48226 Bloomfield Hills 48013 C. Robert Wartell Gary A. Taback 28400 Northwestern Hwy., Box 215 2000 Town Center, Suite 900 Southfield 48034 Southfield 48075 Winter, 1989 -- Page 280 MICHIGAN REAL PROPERTY REVIEW

CONTINUING LEGAL NOMINATIONS EDUCATION (Continued) James W. Draper, Chairperson James M. Tervo 400 Renaissance Center, 35th Floor 800 First National Building Detroit 48243 Detroit 48226 Nyal D. Deems C. Robert Wartell 171 Monroe, N.W., Suite 800 28400 Northwestern Highway, Box 215 Grand Rapids 49503 Southfield 48034 Carl A. Hasselwander 1650 Big Beaver Road, Box 1280 DECISIONS Troy 48084 Joseph A. Lloyd, Chairperson Carol Ann Martinelli 618 South Ashley Street 1500 N. Woodward Ave., Suite 209 Ann Arbor 48103 Birmingham 48011 James R. Brown Robert D. Mollhagen 200 Ottawa, N.W., Suite 700 400 Kalamazoo Building Grand Rapids 49503 Kalamazoo 49007

LEGISLATION PUBLICATIONS George J. Siedel, Editor & Co-Chairperson Gregory L. McClelland, Co-Chairperson 526 Business Admin., Univ. of MI 215 S. Washington Square, Suite 200 Ann Arbor 48109 Lansing 48933 James R. Brown, Co-Chairperson Gall A. Anderson, Co-Chairperson 200 Ottawa Ave. N.W., Ste. 700 215 S. Washington Square, Suite 200 Grand Rapids 49503 Lansing 48933 Nyal D. Deems Jack D. Shumate 171 Monroe Ave., N.W., Suite 800 1650 First National Building Grand Rapids 49503 Detroit 48226 Robert R. Nix II Gary A. Taback 2100 Comerica Building 2000 Town Center, Suite 900 Detroit 48226 Southfield 48075 James M. Tervo 800 First National Building MEMBERSHIP Detroit 48226 James R. Brown, Chairperson Jack D. Shumate 200 Ottawa Avenue N.W., Ste. 700 1650 First National Building Grand Rapids 49503 Detroit 48226 Carl A. Hasselwander C. Robert Wartell 1650 Big Beaver Road, Box 1280 28400 Northwestern Hwy., Box 215 Troy 48084 Southfield 48034 Jack D. Shumate 1650 First National Building Detroit 48226 Gary A. Taback 2000 Town Center, Suite 900 Southfield 48075 MICHIGAN REAL PROPERTY REVIEW Winter, 1989 -- Page 281

SPECIAL COMMITTEES OF THE REAL PROPERTY LAW SECTION

BANKRUPTCY, DEBTOR / CREDITOR RIGHTS

Robert D. Mollhagen William A. Dornbos Leo E. Maki 222 Washington Sq. N. Kalamazoo Hancock Suite 500 Derrick P. Mayes Lansing, MI 48933 James A. Engbers Grand Rapids Detroit COMMITTEE CHAIRPERSON Bruce Elliott Anita Mclntyre Thomas C. Simpson Detroit I00 W. Long Lake Ann Arbor Suite 200 Earl I. Erman Daniel Bo McMahon Bloomfield Hills, MI 48013 Southfield Clawson COUNCIL COORDINATOR Patrick E. Mears Patricia B. Fancy Grand Rapids William W. Allsopp Detroit Bay City Robert D. Mollhagen John D. Fershee Kalamazoo Edward R. Barton Grand Rapids Allegan Dennis R. Neiman Jerome Frank Detroit Leonora K. Baughman Detroit Troy Harold E. Nelson Timothy A. Fusco Grand Rapids Samuel J. Behringer, Jr. Detroit Clawson Eugene Ostrowe Jonathan S. Green Southfield Jaye M. Bergamini Detroit Lansing Clay E. Ottoni Glen Gronseth Detroit Harvey W. Berman Lansing Ann Arbor John T. Piggins Grand Rapids Richard C. Bruder Wallace Handler Southfield Birmingham Kenneth E Posner Bloomfield Hills James B. Burr, Jr. John J. Hebert Grand Rapids Phoenix Cathy E. Radner Ann Arbor Robert Hertzberg John William Butler, Jr. Thomas B. Radom Bloomfield Hills Southfield Birmingham Michael P. Higgins Kim Thomas Capello Mary Richman Birmingham Lapeer Detroit Linda G. Cart Juanita S. Kase Kalamazoo Louis P. Rochkind Sterling Heights Detroit David L. Conklin Daniel M. Katlein Brett N. Rodgers Grand Rapids Detroit Grand Rapids Maria L. Constant Brian C. Kidston Christine Soucy Rueff Ann Arbor Ann Arbor Troy Robert J. Diehl, Jr. Phyllis Artman Kozlowski David W. Ruskin Detroit Detroit Southfield Brian Donovan Michael S. Leib James A. Shalvoy Wyoming Southfield Washington, D.C. Winter, 1989 -- Page 282 MICHIGAN REAL PROPERTY REVIEW

BANKRUPTCY, DEBTOR / CREDITOR RIGHTS (Continued)

Geoffrey L. Silverman Charles J. Taunt Martin G. Weisman Southfield Birmingham Birmingham Robert H. Skilton, III Theodore C. Timmis Jay L. Welford Grand Rapids Farmington Hills Detroit Lisa Sommers Denise D. Twinney William Allan Winshall Detroit Grand Rapids Southfield Ronald Paul Strote Paul A. Ward Thomas A. Zimmer Bloomfield Hills Grand Rapes Detroit

BROKER AND MORTGAGE SERVICES

Gregory L. McClelland James V. Carnago Fred Rolf 215 S. Washington Square Detroit Midland Lansing, MI 48933 Marvin C. Daitch Andrew Robertson, III COMMITTEE CO-CHAIRPERSON Southfield Detroit Gall A. Anderson Daniel G. Dietz Howard Rosenberg 215 S. Washington Sq. Birmingham West Bloomfield Suite 200 Lansing, MI 48933 Albert J. Gladner Thomas St. Dennis, Jr. COMMITTEE CO-CHAIRPERSON Bloomfield Hills Southfield James Tervo John E. Jacobs Eugene L. Smith 800 First National Bldg. Southfield Dearborn Detroit, MI 48226 Timothy J. Orlebeke Paul A. Ward, Esq. COUNCIL COORDINATOR Grand Rapids Grand Rapids Jerald R. Payton Eileen W. Wicklund Sterling Heights Kalamazoo

COMMERCIAL LEASING AND MANAGEMENT OF REAL ESTATE

Michael W. Maddin James C. Adams Robert A. Berlow Third Floor Essex Centre Traverse City Pontiac 28400 Northwestern Hwy. Jonathan W. Anderson James Carl Bieri Southfield, MI 48034 Grand Rapids Detroit COMMITTEE CHAIRPERSON Athena Bacalis Clell C. Boyer, Jr. Detroit Kalamazoo Stephen E. Dawson Joseph Brody 525 N. Woodward Avenue Jeffry M. Bauer Detroit Detroit P.O. Box 509 Bloomfield Hills, MI 48013 David M. Baum Maureen H. Burke COUNCIL COORDINATOR Southfield Detroit MICHIGAN REAL PROPERTY REVIEW Winter, 1989 -- Page 283

COMMERCIAL LEASING AND MANAGEMENT OF REAL ESTATE (Continued)

Richard E. Cassard Julie A. Jordan Thomas d. St. Dennis Grand Rapids Southfield Southfield

Kim Thomas Capello Alan J. Kaufman Leon M. Schurgin Birmingham Farmington Hills Southfield Ralph Castelli Jeffrey S. Klein Birmingham Detroit William D. Serwer Troy Carol Crosby Jeffrey R. Kravitz Birmingham Detroit John Sharp Edward C. Dawda Jonathan P. Macks Detroit Detroit Detroit Larry R. Shoffner Kenneth M. Davies Alan R. Miller Detroit Detroit Birmingham Kevin M. Sterling Gordon W. Didier Matthew J. Missad Bloomfield Hills Detroit Grand Rapids Jennifer L. Draper Kenneth B. Moran Alan M. Stillman Livonia Southfield Bloomfield Hills Douglas M. Etkin Allan Nachman Richard A. Sundquist $outhfield Birmingham Detroit Thomas C. Fitzpatrick John L. Noud Birmingham Mason Frederick A. Synk Troy Robert L. Friedman Patric A. Parker Southfieid Flint Paul A. Tisdale West Bloomfield Dennis Gannan Kenneth E Posner Detroit Bloomfield Hills Brent A. Titus Nancy A. Glen Mark K. Rabidoux Lansing Detroit Southfield Larry A. Weingarden Lisa R. Gorman Christine S. Reiner Birmingham Grosse Pointe Birmingham John E Hartwig George E Rizik, II William Whitbeck, Esq. Birmingham Flint Okemos James A. Hiller William C. Roush Peter N. Zingas, Esq. Southfield Troy Detroit

CONDOMINIUMS, PUD’S AND COOPERATIVES

James N. Candler, Jr. Jeffrey R. Jones Sandra L. Meyer. 800 First National Building 28400 Northwestern Hwy. 35th Floor Detroit, MI 48826 Southfield, MI 48034 400 Renaissance Center COMMITTEE CHAIRPERSON VICE COMMITTEE CHAIRPERSON Detroit, MI 48243 COUNCIL COORDINATOR Winter, 1989 -- Page 284 MICHIGAN REAL PROPERTY REVIEW

CONDOMINIUMS, PUD’S AND COOPERATIVES (Continued)

Mark J. Abdo Margo R. Hannum Karl Reibel East Detroit Birmingham Troy Dale P. Aho Cynthia Gray Hathaway Suzanne S. Reynolds Farmington Birmingham Detroit James P. Babcock Jerome E. Jelinek George E Rizik, II St. Clair Shores Plymouth Flint Essel W. Bailey, Jr. Michael W. Johnson Rosemary G. Schikora Ann Arbor Grosse lle Detroit Marry A. Burnstein Harold Knoor Karen Severn Birmingham Grand Rap~ids Detroit John G. Cameron, Jr. Kevin Kohls Grand Rapids Detroit Earl I. Sherman Farmington Hills David Charron Howard Lax Grand Rapids Detroit C. Kim Shierk Bloomfield Hills Robert C. Davis Rob Roy MacGregor Detroit Royal Oak Steven C. Sowell Jennifer L. Draper Hugh Mo Makens Plymouth Livonia Grand Rapids John A. Stevens Bruce N. Elliott Mark E Makower Bloomfield Hills Ann Arbor Detroit Edward Barry Stulburg John D. Fershee Robert M. Meisner Farmington Hills Grand Rapids Birmingham Jeffrey A. Supowit Karl R. Frankena Jerome A. Moore Detroit Ann Arbor Detroit William Vander Kloot Gregory J. Gamalski William T. Myers Bloomfield Hills Detroit Detroit William K. Van’t Hof Dean J. Gould Robert L. Nelson Grand Rapids Southfield Grand Rapids Robert B. Guyot, III Cynthia P. Ortega Richard L. Wagner Traverse City Kalamazoo Mount Clemens William W. Hall Patric A. Parker Wayne G. Wegner Grand Rapids Flint Grosse Pointe Farms Mark C. Hanisch Lee Ravitz Michaelene K. Young Grand Rapids Southfield Ypsilanti MICHIGAN REAL PROPERTY REVIEW Winter, 1989 -- Page 285

CONSTRUCTION

Ronald Paul Strote Marty Burnstein James G. Halverson 100 W. Long Lake Southfield East Lansing Bloomfield Hills, MI 48013 James Booth Burr, Jr. Patrick Hanes COMMITTEE CHAIRPERSON Grand Rapids Lansing Richard W. Pennings Douglas E. Busbey Margo R. Hannum 401 S. Washington Sq. Southfield Birmingham P.O. Box 30044 Lansing, MI 48909 James R. Case Timothy L. Hass COUNCIL COORDINATOR Detroit Gaylord Bernard Abrams Charles E Clippert Michael C. Hechtman Southfield Bloomfield Hills Southfield James Adams David G. Coleman Jeff Heuer Traverse City Lansing Detroit Richard D. Areddy Thomas J. Condon Julius J. Hoffman, III Birmingham Allen Park Jackson Athena Bacalis Carl L. Constant Gary Jentzen Detroit West Bloomfield Brighton Maxine S. Basso Maria L. Constant James R. Keller Rochester Ann Arbor Bloomfield Hills James W. Batchelor Dennis G. Cowan Richard Knoll Grand Rapids Detroit Southfield Dirk H. Beckwith Cynthia A. Crawford Gerard K. Knorr Detroit Detroit Troy llana Ben-Ze’ev James A. D’Agostini Willis C. Lillard Detroit Bloomfield Hills Grosse Pointe Harvey W. Berman Clifford J. Devine Michael T. Lynch Ann Arbor Southfield Detroit Paul J. Blizman E. Peter Drolet Edward J. Marko Southfield Bloomfield Hills Southfield Stephen J. Bock Larry Dudek Dana Milbrand Southfield Southfield Warren Robert S. Bolton Christopher L. Edgar Sheryl A. Moody Bloomfield Hills Grand Rapids Detroit William D. Booth Bruce Elliott Mary P. Nelson Detroit Ann Arbor Detroit Gary A. Bruder Robert B. Frederick Andrew Paterson, Jr. Detroit Troy Troy Danny Buchman Paul J. Goyette John A. Porter Lansing Birmingham Grand Rapids Maureen H. Burke Margaret Green John A. Potter Detroit Detroit Grand Rapids Winter, 1989 -- Page 286 MICHIGAN REAL PROPERTY REVIEW

CONSTRUCTION (Continued)

Edward H. Powers Michael E Skinner Gordon W. Van Wieren Flint Lansing Lansing John E Rohe George Spanos Donald R. Visser Petoskey Petoskey Grandville Robert S. Rollinger Kevin M. Sterling Richard Wagner Birmingham Bloomfield Hills Mt. Clemens Howard Rosenberg John Stevens Michael C. Walton West Bloomfield Bloomfield Oills Grand Rapids Larry A. Rueff Timothy A. Stoepker C. Robert Wartell Milford Detroit Southfield Morgan J.C. Scudi Dennis W. Strelchuk Stewart C. W. Weiner Detroit Davisburg Southfield Roy Sgroi Elaine Temesan Stanley M. Weingarden Birmingham Detroit Southfield William T. Shaw Gary A. Trepod James J. Williams Lansing East Lansing Bloomfield Hills Robert H. Skilton, III Tyson Building Company Harvey J. Zameck Grand Rapids Romeo Southfield

EMINENT DOMAIN

Boris K. Yakima Bruce H. Benz Michael H. Feiler 1700 N. Woodward Avenue Ann Arbor Farmington Hills Bloomfield Hills, MI 48013 COMMITTEE CHAIRPERSON David W. Berry John J. Giannini Birmingham Detroit Bert Burgoyne Mary Ray Brophy Henry W. Gleiss 32270 Telegraph Road Birmingham St. Joseph Birmingham, MI 48010 COUNCIL COORDINATOR Thomas K. Bullen John R. Hand Clarkston Dearborn Alan Ackerman Detroit William C. Calahan Kurt D. Hassberger Detroit Grand Rapids Charles W. Anderson, III Detroit James C. Cobb, Jr. William L. Hay Detroit Mt. Clemens David L. Balas Kenneth M. Davies Thomas H. Healy, Jr. Grand Rapids Detroit Plymouth Joseph N. Baltimore James Dempsey Hilda H. Hirata Detroit Jackson Detroit Thomas P. Beagan James N. Fanzini Jeffrey S. Klein Detroit Pontiac Detroit MICHIGAN REAL PROPERTY REVIEW Winter, 1989 -- Page 287

EMINENT DOMAIN (Continued)

Alvin R Knot Thomas J. O’Toole Marjorie R Russell Lansing Muskegon Lansing James J. Kobza James Paterson Gellert A. Seel Muskegon Hazel Park Detroit Richard L. Lang Jerome P. Pesick Thomas B. Serowik Boyne City Southfield Detroit C. Vernon Leopold Thomas C. Phillips Ronald R. Sogge South field Lansing Detroit John H. Logie Russell A. Pitts John D. Staran Grand Rapids Grand Rapids Bloomfield Hills Philip J. Mabarak David J. Portelli James H. Starr Detroit Birmingham Lansing Clara Damatteis Mager Dale W. Rhoades Frederick D. Steinhardt Detroit Grand Rapids Southfield Walter Mason John M. Roche C. Robert Wartell Detroit Detroit Southfield Gregg Nathanson Robert Rollinger Charles White Southfield Birmingham Flint Frank A. O’Boyle, Jr. Ronald Rose Mark J. Zausmer Detroit Lansing Farmington Hills

ENVIRONMENTAL LAW AND ENERGY

Gary A. Trepod Laurence A. Berg Robert Charles Davis 636 Michigan National Tower Southfield Detroit Lansing, MI 48933 COMMITTEE CHAIRPERSON Linda S. Berker J. Andrew Domagalski Davison Richland Jack D. Shumate Gregory W. Blanche Thomas M. Fallucca 1650 1st National Building Traverse City Birmingham Detroit, MI 48226 COUNCIL COORDINATOR Stephen J. Bock Gerald A. Fanning Southfield Detroit Frank Andrews Bloomfield Hills Marty A. Burnstein William C. Fulkerson Birmingham Lansing Donn Atanasoff Dan M. Challa James D. Florip Iron River Grand Rapids Alpena Brenda L. Beckett Ernest P. Chiodo Charles K. Gillies Detroit Mt. Clemens Lansing Alan Bennett George F. Curran, III James M. Ginn Grand Rapids Southfield Birmingham Winter, 1989 -- Page 288 MICHIGAN REAL PROPERTY REVIEW

ENVIRONMENTAL LAW AND ENERGY (Continued)

Allen Glass John A. Obee John C. Rothaar Farmington Hills Southfield Midland Thomas P. Grady Rudy Perhalla Mary P. Sclawy Lansing Ironwood Detroit Michael Gricefis Thomas C. Phillips Martha L. Seaman Detroit Lansing Lansing Larry K. Griffis Russell A. Pitts Grand Rapi~Is Eugene E. Smary Detroit Grand Rapids Julius J. Hollis Joe Polito Detroit Detroit Kevin T. Smith Lansing Peter D. Holmes Richard G. Porter Detroit Blue Bell George Spanos Petoskey William A. Horn Michael H. Rhodes Grand Rapids Lansing H. G. Sparrow, III George Kircos Jack Ribiat Detroit South field Dearborn James P. Walle Jeffrey S. Klein Mark Richardson Detroit Detroit Detroit J. William Whitlock Kevin A. Lavalle Patrick J. Riley Muskegon Pontiac Jackson William A. Wichers, II Albert J. Lilly, Jr. Charles A. Robison Detroit Birmingham Albion John D. Loeks Michael L. Robinson Thomas M. Woods Grand Rapids Muskegon Detroit Anita Mclntyre Frances A. Rosinski Jack B. Wolfe Detroit Detroit Birmingham

FEDERAL TAX ASPECTS OF REAL ESTATE TRANSACTIONS

William B. Acker Robert B. Bayer John J. Collins, Jr. 1400 N. Woodward Bloomfield Hills Birmingham P.O. Box 12078 Birmingham, M! 48011 Kenneth James Bisdorf Edward M. Deron COMMITTEE CHAIRPERSON Bloomfield Hills Detroit James Bonfiglio Thomas L. Geer Lawrence D. McLaughlin East Lansing Bloomfield Hills 2290 First National Building Detroit, MI 48226 Robert A. Burley Steven E. Grob COUNCIL COORDINATOR Davison Detroit

David M. Baum Ronald T. Charlebois Julius J. Hoffman, III Farmington Hills Southfield Jackson MICHIGAN REAL PROPERTY REVIEW Winter, 1989 -- Page 289

FEDERAL TAX ASPECTS OF REAL ESTATE TRANSACTIONS (Continued)

Stephen A. Johnson Gary Pollack John R. Selecky Detroit Southfield Bloomfield Hills

Donald Lansky John M. Ranke James S. Serocki Southfield West Bloomfield Southfield Michael J. Mehr Jack Ribiat Detroit Southfield Richard A. Shapack Bloomfield Hills Jeffrey A. Miro Irving D. Robinson Bloomfield Hills Center Line Sander H. Simen Benjamin R. Moore Alan C. Roeder Flint Troy Southfield Alan M. Valade Andrew J. Munro Raymond T. Rowe Mason Troy Troy Arthur A. Weiss Bruce A. Newman Simon H. Sander Detroit Flint Flint lan D. Pesses Leon M. Schurgin Peter N. Zingas Southfield Southfield Detroit

MORTGAGES AND RELATED FINANCING DEVICES AND SECURITY INTERESTS

Richard J. Rankin, Jr. James W. Batchelor Maria L. Constant 500 Calder Plaza Grand Rapids Ann Arbor Grand Rapids, MI 49503 COMMITTEE CHAIRPERSON Robert B. Bayer Raymond F. Curtin Bloomfield Hills Flint Robert R. Nix, III llana Ben-Ze’ev Marvin C. Daitch 2100 Comerica Building Detroit Southfield Detroit, MI 48226 COUNCIL COORDINATOR Frederick S. Bluford Edward C. Dawda Southfield Detroit James L. Allen Detroit Stephen J. Bock Bernadette M. Dennehy Southfield Detroit Julane Brooks Alt Southfield B. Kingsley Buhl Louis A. Desenberg Bloomfield Hills Buchanan Gall A. Anderson Maureen H. Burke Jerome A. Eckrich Detroit Detroit Saginaw Clark A. Andrews James Booth Burr, Jr. Graydon H. Ellis, Jr. Sterling Heights Grand Rapids Ann Arbor Athena Bacalis John B. Carlin, Jr. Marian L. Faupel Detroit Birmingham Ann Arbor Thomas A. Balinski Dan M. Challa Anthony T. Finn Birmingham Grand Rapids Detroit Winter, 1989 -- Page 290 MICHIGAN REAL PROPERTY REVIEW

MORTGAGES AND RELATED FINANCING DEVICES AND SECURITY INTERESTS (Continued)

Vance A. Fisher Peter A. Jordan Peter E. O’Rourke St. Joseph Big Rapids Detroit Francis C. Flood Joel D. Kellman Ronald Palmer Birmingham Southfield Troy Mary Fowlie Mary S. Kershner Frederick A. Petz Troy Detroit Grosse Pointe Woods Joseph E Galvin Bradley Knickerbocker Anthony V. Pieroni Southfield Grosse Point~ Detroit Stuart Goldstein Jeffrey R. Kravitz Mark K. Rabideoux Southfield Detroit Detroit Terence P. Grady John A. Landreville Jack Ribiat Lansing Birmingham Southfield Thomas W. Hall, Jr. Howard Lax Rachel Bo Ross Mto Pleasant Detroit Troy Randall R. Hall Alan S. Levine William C. Roush Troy Birmingham Troy John A. Hamburger Jon Maire Phyllis Rozof Bloomfield Hills Lansing Detroit Vicki R. Harding Edward J. Marko Thomas J. St. Dennis, Jr. Detroit Southfield Southfield Charles T. Harris Thomas McGurrin, Jr. Gary Segatti Bloomfield Hills Lansing Royal Oak George K. Heartwell, St. Lawrence D. McLaughlin Robert L Shegos Grand Rapids Detroit Flint Palmer T. Heenan Victor T. Miller Kenneth E Silver Detroit Farmington Hills Bloomfield Hills Michael P. Higgins Daniel H. Minkus Wilfred A. Steiner Lapeer Birmingham Detroit James A. Hiller John C. Murray Gary Louis Walker Southfield Oakbrook, IL Bloomfield Hills Ronald E. Hodess Allan Nachman Martin C. Weisman Southfield South field Birmingham Julius J. Hoffman, III John A. Nitz Jay L. Welford Jackson Sterling Heights Detroit John E. Jacobs Charles T. Nolan J. Bryan Williams Southfield Royal Oak Detroit MICHIGAN REAL PROPERTY REVIEW Winter, 1989 -- Page 291

OIL, GAS & NATURAL RESOURCES

Larry M. Elkus Charles K. Gillies Richard Moritz 525 N. Woodward Avenue Lansing Grand Rapids Bloomfield Hills, MI 48013 Jeffrey L. Green COMMITTEE CHAIRPERSON Dan Nielson Traverse City Mason James R. Brown Randall L. Hansen Robin L. Omer 200 Ottawa Avenue, N.W. St. Clair Grand Rapids, MI 49503 East Lansing COUNCIL COORDINATOR David D. Joswick John A. Potter Bloomfield Hills John R. Baker Grand Rapids Detroit Mary S. Kershner Detroit Richard A. Randall Gregory W. Blanche Ludington Traverse City Jeffrey C. Kinzel Grand Rapids Kelly Reed Lowell Blumberg Lansing Gaylord Lawrence W. Konopka Ludington Michael H. Rhodes Charles G. Boos Lansing Traverse City Michael D. Kopinski Grand Rapids Patrick d. Riley Stephen Chambers Jackson Traverse City Charles R. Korten Jackson Jack D. Sage Jack C. Chilingirian Richard N. LaFlamme Grand Rapids St. Clair Shores Ann Arbor William H. Stephens, III R. Timothy Clements David A. Lawler Jackson Lansing Midland George E Curran, III Earle H. Stevenson H. Edward Lewis Jackson Southfield Houston, TX Donald C. Deremo Thomas T. Thompson Jack L. Lintner Ludington Livonia Coldwater Mark A. Van Allsburg J. Andrew Domagalski Paula K. Manis Richland Lansing Grand Rapids Thomas J. Emery Mary L. Mason JoAnne E. Williams Lansing Grand Rapids Mason Ted C. Farmer Veryl N. Meyers Robert H. Witkop Detroit Grand Rapids Traverse City William C. Fulkerson J. Donel Moore Gary L. Worman Lansing Lansing Midland Winter, 1989 -- Page 292 MICHIGAN REAL PROPERTY REVIEW

PARTNERSHIPS, JOINT VENTURES AND OTHER INVESTMENT VEHICLES

Michael D. Mulcahy Robert B. Cohen John M. Lawrence, Jr. 1400 N. Woodward Ave. Southfield Battle Creek Bloomfield Hills, MI 48033 Maria L. Constant Robert R. Lennon COMMITTEE CHAIRPERSON Ann Arbor Kalamazoo Thomas C. Simpson Julius E. Crawford Peter A. Long 100 W. Long Lake, Suite 200 South field Ann Arbor Bloomfield Hills 48013 COUNCIL COORDINATOR Jeanette Disbrow Rob Roy MacGregor Lansing ¯ Royal Oak Joel S. Adeiman Detroit Don F. Dodge George J. Mager, Jr. Taylor ~ Detroit Gail A. Anderson Detroit David K. Easlick, Jr. Edward J. Marko Detroit Southfield Frank Andrews Bloomfield Hills L. Fallasha Erwin Charles M. McCuen Detroit Birmingham C. Leslie Banas South field Gerald A. Fanning Melvin S. McWilliams Detroit Lansing Richard A. Barr Southfield Karl R. Frankena Michael J. Mehr Ann Arbor Detroit Jeffry M. Bauer Murray J. Millar Detroit David Foster Southfield Wayne Robert B. Bayer ,John W. Gelder David W. Moore Bloomfield Hills Bloomfield Hills Bloomfield Hills Joseph R. Bell Robert E. Gilbert Brian Joseph Murphy East Lansing Ann Arbor Royal Oak Mark Benyas Stuart Goldstein Robert R. Nix, II Detroit South field Detroit Stephen J. Bock Sally S. Harwood John E Noonan Southfieid Detroit Troy Richard M. Bolton James A. Hiller Patrick J. O’Neill Detroit South field South field James Bonfiglio Joseph H. Hollander Michael J. Odette East Lansing Lansing Royal Oak Gary A. Bruder Patrick A. Karbowski David N. Parsigian Ann Arbor Birmingham Ann Arbor Kim T. Capello David R. Kratze Cecil G. Raitt Pontiac South field Detroit David E. Cary Lynn R. Kromminga Anthony T. Randall Detroit Detroit Lansing Brace K. Case Carol Ann Jaworski Richard C. Rollins Farmington Davison Franklin MICHIGAN REAL PROPERTY REVIEW Winter, 1989 -- Page 293

PARTNERSHIPS, JOINT VENTURES AND OTHER INVESTMENT VEHICLES (Continued)

Steven P. Ross Norman W. Stern Robert N. Wagner Southfield Southfield St. Clair Shores

Edward R. Schonberg Edward Barry Stulberg Gary L. Walker Detroit Farmington Hills Bloomfield Hills James S. Serocki Southfield Fred W. Thomas Michael H. Wampler Detroit Plymouth Richard A. Shapack Bloomfield Hills Truman D. Timmis David K. Wenger Earl I. Sherman Roseville Detroit Farmington Hills David L. Tornga William C. Whitbeck Paul Sislin Bloomfield Hills Okemos Southfield Maurice V. Victor Carl H. Weinberg John R. Slate Southfield Troy Riverview George D. Spanos William H. Volz Fred M. Woodruff Petoskey Detroit Detroit

PROFESSIONAL RESPONSIBILITY

William C. Roush Frederick Freeman Stephen E. Morgan I00 E. Big Beaver Road Oak Park Jackson Troy, MI 48083 Robert B. Guyot, III COMMITTEE CHAIRPERSON Traverse City William E. Peters Bay City James M. Tervo Julius J. Hoffman, III 800 First National Building Jackson lan J. Reach Detroit, MI 48226 Ann Arbor COUNCIL COORDINATOR Jon K. Jenkins Mason William S. Bovill Eugene L. Smith Janet Kinzinger Dearborn Saginaw Milford Donald T. Ciepichal Maurice A. Merritt Richard Wagner Toledo, OH Birmingham Mt. Clemens

PUBLIC FINANCING

Timothy D. Sochocki Robert R. Nix, III Frank L. Andrews 1st National Building 2100 Comerica Building Bloomfield Hills 4th Floor Detroit, MI 48226 Richard A. Barr Ann Arbor, MI 48104 COUNCIL COORDINATOR Southfield COMMITTEE CHAIRPERSON Winter, 1989 -- Page 294 MICHIGAN REAL PROPERTY REVIEW

PUBLIC FINANCING (Continued)

William Bo Beach Sol M. Friedman Bella I. Marshall Detroit Southfield Detroit Patrick J. Berardo Terrence P. Grady Richard P. Mazur Lansing Lansing Madison Heights James W. Bliss David P. Grunow Mitch Meisner Lansing Flat Rock Detroit Gerald L Decker John M. Kamins Howard Rosenberg Detroit Detroit West Bloomfield William A. Dornbos Jay Kaplan Diane G. Schwartz Kalamazoo Southfield Detroit Milton I. Firestone James R. Keller Kester K. So Lansing Bloomfield Hills Lansing Deborah E. Fisher Thomas S. Leven Fred M. Woodruff Detroit Southfield Detroit

RESIDENTIAL TRANSACTIONS (including Landlord and Tenant)

SALES, FINANCING William S. Bovill Joseph J. Goluban SUBCOMMITTEE Saginaw Riverview Thomas J. St. Dennis, Jr. Benjamin E Brody Mark D. Goodman 28400 Northwestern Hwy. Southfield Utica Suite 400 Daniel J. Brondyk Russell W. Hall Southfield, MI 48034 Grand Rapids Escanaba COMMITTEE CHAIRPERSON George W. Burnard Terry J. Klaasen C. Robert Wartell Troy Jackson 3rd Floor Essex Centre 28400 Northwestern Hwy. Diane Bissell Carley Howard Lax Southfield, MI 48034 Detroit Detroit COUNCIL COORDINATOR Donald T. Ciepichal John B. Lizza Toledo, OH Detroit Earlene R. Baggett Pontiac George S. Clark Daniel C. Matson Bloomfield Hills DeWitt Jeffry M. Bauer Detroit Barry L. CoDe Robert E. McCarthy Mancelona East Lansing Gordon L. Beeman Dale E. Cooper John E Mertz Ann Arbor Brighton Lansing Robert L. Blinstrub Clarence M. Gabel A. Russell Messina Birmingham Farmington Hills West Bloomfield Arlyn J Bossenbrook Garold A. Goidosik Victor Miller Lansing Kalamazoo Farmington Hills MICHIGAN REAL PROPERTY REVIEW Winter, 1989 -- Page 295

RESIDENTIAL TRANSACTIONS (Continued) (including Landlord and Tenant)

Stephen E. Morgan John A. Porter Dennis A. Swan Jackson Grand Rapids Lansing Mayer Morganroth Jack Ribiat Carl R. Taylor Southfield Southfield Detroit William E Nern Thomas J. St. Dennis, Jr. Timothy L. Tromp Birmingham Southfield Hastings Charles T. Nolan William M. Schlecte Robert Van Wiemeersch Royal Oak Ann Arbor East Detroit William J. Oldani Harry J. Seitz Beryle Walters Detroit Monroe Southfield John A. Landreville Diane Slinger Charles R. Wilson Birmingham Detroit St. Clair Shores

LEASING, LANDLORD AND TENANT SUBCOMMITTEE

Thomas J. St. Dennis, Jr. Walter F. Finan, Jr. Alan R. Miller 28400 Northwestern Hwy. Detroit Birmingham Suite 400 Burke Fossee III Charles A. Murphy Southfield, MI 48034 Bloomfield Hills Southfield COMMITTEE CHAIRPERSON Philip E. Hodgman William E Nern C. Robert Wartell East Lansing Birmingham 3rd Floor Essex Centre 28400 Northwestern Hwy Robert D. Honigman Gary L Nicholson Southfield, MI 48034 Fraser Grand Rapids COUNCIL COORDINATOR Paul H. Huth Mark A. Otto James A. Abbot Detroit Manistee Hazel Park Michael C. Jordan Cynthia S. Platzer Battle Creek Port Huron David J. Bennett Southfield M. Randall Jurrens Ronald J. Plunkett Saginaw Dearborn Frederick S. Bluford Southfield Jay D. Kaplan fan J. Reach Southfield Ann Arbor William E Carson Brian C. Kidston Michael L. Resnick Ann Arbor Ann Arbor Grand Rapids Robert M. Chimovitz Andrew Komblevitz Jack Ribiat Flint Ypsilanti South field Arthur J._ Clyne John A. Landreville Richard A. Rietema Alma Birmingham Holland Thomas R. Dilley Ronald A. Lustig Sheldon M. Scharg Grand Rapids Farmington Hills Farmington Hills Winter, 1989 -- Page 296 MICHIGAN REAL PROPERTY REVIEW

LEASING, LANDLORD AND TENANT SUBCOMMITTEE (Continued)

Robert E. W. Schnoor Jack M. Struwin Robert P. Van Wiemeersch Grand Rapids St. Joseph East Detroit Michael Slaughter Wanda VanderMeer Richard Wagner Kalamazoo Waterford Mr. Clemens

STATE AND LOCAL TAXATION

Samuel J. McKim, III Joseph J. Goluban Andrew D. Richards 1400 North Woodward Riverview Saginaw Bloomfield Hills, MI 48013 COMMITTEE CHAIRPERSON John R. Hand Robert G. Schuch Dearborn Detroit Jack D. Shumate 16500 First National Building James R. Keller John R. Selecky Detroit, MI 48226 Bloomfield Hills Bloomfield Hills COUNCIL COORDINATOR Alvin P. Knot James S. Serocki James R. Barton Lansing Southfield Grand Rapids A. Christine Lawrence Wilfred A. Steiner Ronald M. Basso Capac Detroit Okemos Walter B. Mason, Jr. William R. Thompson Thomas J. Beale Southfield Mt. Pleasant Detroit Maurice A. Nelson Alan M. Valade Patrick J. Berardo Niles Mason Lansing Ralph H. Nelson, Jr. Fred M. Woodruff Karen J. Choate Saginaw Rochester Detroit Daniel K. Converse Thomas S. Nowinski Boris K. Yakima Dearborn Detroit Bloomfield Hills Alfred J. Gemrich Vincent P. Provenzano Michaelene K. Young Kalamazoo Jackson Ypsilanti Leo Goidstein Carl Rashid, Jr. Peter N. Zingas Southfield Detroit Detroit

TITLES AND CONVEYANCING

Willard G. Moseng Richard W. Pennings Roger H. Anderson 401 S. Washington Square 401 S. Washington Square Ludington P.O. Box 30044 P.O. Box 30044 John Bishop Lansing, MI 48909 Lansing, MI 48909 Vassar COMMITTEE CHAIRPERSON COUNCIL COORDINATOR William S. Bovill Saginaw MICHIGAN REAL PROPERTY REVIEW Winter, 1989 -- Page 297

TITLE~ AND CONVEYANCING (Continued)

B. Kingsley Buhl Dennis G. Gross Lee R Mohnkern Bloomfield Hills Petoskey Troy Angus M. Campbell Dennis Hagerty Stephen E. Morgan Detroit Birmingham Jackson William L. Carey Thomas W. Hall, Jr. Nancy C. Nawrocki Grayling Mt. Pleasant Brighton Robert E Cavanagh Thomas Hardy Robert S. Olivier Birmingham Birmingham Saginaw Dan M. Challa Nancy D. Heathcote Clay E Olmstead Grand Rapids Detroit Ludington Robert M. Chimovitz Albert C. Hicks Dale A. Ostertag Flint Bay City Mr. Clemens Paul T. Chirco Robert L. Hoffman Diane Margosian Paulsen St. Clair Shores Charlevoix Troy Karen J. Choate Brian C, Kidston Cynthia S. Platzer Saginaw Ann Arbor Port Huron Kimberly A. Connelly Leo M. Kistner Richard G. Porter Jackson Warren Blue Bel Maria L. Constant Thomas I. Kreckman Charles E. Potter Ann Arbor Gladwin Lapeer Joseph G. Couvreur Thomas A. Ladd Richard A. Randall Southgate Menominee Ludington Cynthia A. Crawford James P. Lanzetta Kelly Reed Detroit Livonia Lansing Maxine J. Daitch Edward M. Libby Laura Reyes-Kopack Birmingham Sterling Heights Detroit James P. Eley Daniel P. Lievois John E Rohe Bronson Mt. Clemens Petoskey Harry S. Ellman John B. Lizza T. Gordon Scupholm, II Birmingham Detroit Birmingham Ernest J. Essad, Jr. Jonathan R Macks Harry J. Seitz Plymouth Detroit Monroe Donald C. Frank Thomas E. McClear Samuel J. Serra Lansing Owosso Mt. Clemens Charles K. Gillies Edward McNamara, Jr. John E Shantz Lansing St. Ignace Bloomfield Hills Garold A. Goidosik John T. McNeil William A. Siebert Kalamazoo Paw Paw Beaverton Dean J. Gould Robert N. Meyers Sheryl K. Silberstein Southfield Flint Birmingham Winter, 1989 -- Page 298 MICHIGAN REAL PROPERTY REVIEW

TITLES AND CONVEYANCING (Continued)

Kenneth F. Silver Michael G. Troyanovich Loyall G. Watson Bloomfield Hills Warren Port Huron Sander H. Simen Jack Turner JoAnne Williams Flint Detroit Mason Steven E. Smith Mark A. Van Allsburg Joseph W. Yogus, Jr. Riverview Grand Rapids Centerville William R. Thompson Paul A. Ward Mr. Pleasant Grand Rapids~

WATER LAW

Ronald T. Barrows Robert B. Guyot, Ill J. Bushnell Nielsen 21631 E. Nine Mile Rd. Traverse City Birmingham St. Clair Shores, MI 48080 Mark Hanisch COMMITTEE CHAIRPERSON John E Noonan Grand Rapids Troy Nyal D. Deems Edward M. Libby 171 Monroe Avenue, N.W. Sterling Heights Cynthia S. Platzer Suite 800 Port Huron Grand Rapids, MI 49503 Douglas S. McDougal COUNCIL COORDINATOR Troy Russell Prins Lansing Jon Anderson Thomas D. McElgunn Grand Rapids Sterling Heights William M. Schlecte Linda S. Berker Lee P. Mohnkern Ann Arbor Davison Troy Kevin T. Smith William L. Carey J. Donel Moore Lansing Grayling Lansing C. Peter Theut Robert Charles Davis William A. Moore Detroit Detroit Detroit Raymond DeBates Brian Joseph Murphy Jack B. Wolfe St. Clair Shores Royal Oak Birmingham Charles K. Gillies Robert L. Nelson William G. Zabel Lansing Grand Rapids Clarkston

ZONING AND LAND USE

David W. Berry C. Robert Wartell Julie D. Abear 32270 Telegraph 3rd Floor Essex Centre Bloomfield Hills 28400 Northwestern Hwy. Suite 200 Philip G, Adkison Birmingham, MI 48010 Southfield, MI 48034 Pontiac COMMITTEE CHAIRPERSON COUNCIL COORDINATOR MICHIGAN REAL PROPERTY REVIEW Winter, 1989 -- Page 299

ZONING AND LAND USE (Continued)

Denise R. Alexander Alan G. Enderle Richard P. Manczak Birmingham Kalamazoo Birmingham Robert D. Andrews, Jr. Ernest J. Essad, Jr. Edward J. McArdle Ludington Plymouth Saginaw James E Barley William K. Fahey Alan R. Miller Howell Lansing Birmingham Richard A. Barr Richard W. Ford Denis C. Monahan Southfield Traverse City Detroit Edwin A. Bayer, III James Ginn Gregory K. Need Farmington Hills Southfield Pontiac Robert B. Bayer Allen Glass Bruce R. Nichols Bloomfield Hills Farmington Hills Detroit Linda S. Berker Neff Gorosh Kathleen R. Opperwall Davison Southfield Lansing Harvey W. Berman Alan M. Greene Cynthia P. Ortega Ann Arbor Detroit Kalamazoo R. Drummond Black Charles T. Harris Cynthia S. Platzer Midland Bloomfield Hills Port Huron Joel G. Bouwens Robert J. Harris Richard B. Poling, Jr. Holland Ann Arbor Birmingham William S. Bovill Margaret Meyers Hoppe Joseph Polito Saginaw Lansing Detroit Maureen H. Burke Norman Hyman David J. Portelli Detroit Detroit Birmingham Marry A. Burnstein Emery E. Jacques, Jr. James W. Porter Southfield Walled Lake Kalamazoo Richard A, Campbell Robert B. Kane Vincent R Provenzano Clarkston Alpena Jackson Karen J. Choate Alvin P. Knot Samuel A. Ragnone Saginaw Lansing Flint Daniel Conklin Thomas J. Langan Gary R. Rentrop Kalamazoo Detroit Bloomfield Hills Jonathan R. Crane Mark A. Latterman Robert S. Rollinger Birmingham Lansing Birmingham James I. DeGrazia Edward M. Libby John R Ruge Detroit Sterling Heights Lansing W. Peter Doren Kalen E, Lipe Michael D. Schwartz Traverse City Menominee Sterling Heights James P. Eley Clara Dematteis Mager Thomas C. Shearer Bronson Detroit Grand Rapids Winter, 1989 -- Page 300 MICHIGAN REAL PROPERTY REVIEW

ZONING AND LAND USE (Continued)

Earl I. Sherman Frederick D. Steinhardt Neff E. Wallace Farmington Hills Southfield Bloomfield Hills Kevin T. Smith Timothy A. Stoepker Lansing Detroit Terry T. Warren Okemos Ronald R. Sogge Dennis W. Streichuk Bloomfield Hills Davisburg Martin C. Weisman George Spanos Edward Barry Stulberg Troy Petoskey Farmington H~Is John D. Staran James E. Tamm James A. Williams Bloomfield Hills Detroit Bloomfield Hills MICHIGAN REAL PROPERTY REVIEW Winter, 1989 -- 301

CUMULATIVE ARTICLE INDEX

ABSTRACTS OF TITLE vs INSURANCE -- WHICH SHOULD YOU RECOMMEND TO YOUR CLIENT? -- by Allen E. Priestley -- August, 1974, p. 3. ACTIONS TO QUIET TITLE UNDER MICHIGAN LAW -- by Samuel J. Behringer, Jr. -- February, 1975, p. 16.

ALTA TITLE POLICY FORMS: 1987 REVISIONS -- by Ronaid E. Hodess -- Spring, 1988, p. 39.

ALTERNATIVE THEORIES FOR RECOVERY OF CONSTRUCTION CLAIMS -- by Clifford J. DeVine and Dana I. Avrunin -- Fall, 1985, p. 168.

AN ANALYSIS OF THE CONSOLIDATED MORTGAGE DECISION -- by Thomas L. Griem -- April, 1977, p. 14.

ANALYSIS OF CONSTRUCTION SUBCONTRACT AGREEMENTS -- by Clifford J. DeVine -- Summer, 1989, p. 67.

AN ANALYSIS OF MICHIGAN’S NEW USURY STATUTES -- by James Marshall -- June, 1980, p. 86.

AN ANALYSIS OF A "PHENOMENON" -- SITE CONDOMINIUM PROJECTS -- by Mark F. Makower and Jeffery R. Jones -- Winter, 1989, p. 241.

ANALYSIS OF PRIORITY CLAIMS UNDER THE MICHIGAN BUILDERS TRUST FUND ACT IN THE BANKRUPTCY SETTING -- by Clifford J. DeVine and Ronald R Strote -- Summer, 1986, p. 39. ANALYSIS OF SUBDIVISION CONTROL ACT OF 1967 -- by Joseph J. Goluban -- August, 1978, p. 2.

ANATOMY OF AN OIL AND GAS LEASE -- by Lawrence M. Elkus -- Summer, 1983, p. 100.

ANOTHER ACRONYM COMES OF AGE, OR WILL FIRPTA’S NEW WITHHOLDING REQUIREMENTS FREEZE FOREIGN INVESTMENT IN THE UNITED STATES? -- by Kaplin Jones and Nyal Deems -- Summer, 1985, p. 29. APPLICATION OF CHANGES IN COST RECOVERY AND REHABILITATION CREDITS UNDER THE 1981 ECONOMIC RECOVERY TAX ACT TO A REAL ESTATE PROJECT -- by Michael J. Brenner and Mark L Robinson -- October, 1982, p. 215.

ASBESTOS AND CONSTRUCTIVE EVICTION: DETERMINING A STANDARD OF FITNESS FOR LEASEHOLDS -- by Lawrence R. Shoffner -- Spring, 1989, p. 11. ASSESSING SUBSIDIZED APARTMENTS: CONGRESSHILLS APARTMENTS I AND II -- by Thomas J. Beale -- Summer, 1984, p. 335.

ATTORNEY FEES IN CONDEMNATION CASES -- by Walter B. Mason, Jr. and Frederick D. Steinhardt -- Fall, 1986, p. 73.

BANK BOARD FINAL REGULATIONS FOR DUE-ON-SALE UNDER GARN-ST. GERMAINE ACT -- by William B. Dunn -- Summer, 1983, p. 90.

THE BUILDER’S TRUST FUND ACT -- by Andrew A. Paterson, Jr. -- December, 1976, p. 3.

THE BUILDER’S TRUST FUND ACT -- REVISITED -- by Andrew A. Paterson, Jr. -- February, 1979, p. 22. Winter, 1989 -- Page 302 MICHIGAN REAL PROPERTY REVIEW

CHECKLIST FOR PROCEEDINGS BEFORE MICHIGAN TAX TRIBUNAL -- by Leo Goldstein and Donald M. Lansky -- August, 1978, p. 35.

CITIZEN SUITS UNDER THE CLEAN WATER ACT -- GWALTNEY MUDDLES THE WATERS -- by Peter D. Holmes -- Spring, 1989, p. 17. CLARIFICATION OF DOWER RIGHTS UNDER THE REVISED PROBATE CODE -- by Ralph Jossman -- April, 1981, p. 29. CLOGGING THE EQUITY -- by John C. Murray -- October, 1981, p. 132.

COMMENDING THE PLANNED UNIT DEVELOPMI~NT -- by Gerald A. Fisher -- Summer, 1983, p. 61.

A COMMENTARY UPON AND CRITIQUE OF ACT 351, PUBLIC ACTS OF 1984: MICHIGAN’S ANSWER TO FEDERAL PREEMPTION OF STATE LAW GOVERNING ENFORCEABILITY OF DUE-ON-SALE CLAUSES -- by William B. Dunn -- Summer, 1985, p. 80.

COMMON OIL AND GAS TERMS -- by David A. Lawler -- Summer, 1983, p. 96. COMPETING PRIORITY CLAIMS UNDER THE MICHIGAN BUILDER’S TRUST FUND ACT -- by Stanley M. Weingarden and Clifford J. DeVine -- Summer, 1983, p. 70. CONDO DEREGULATION ARRIVES -- COMPLETE WITH QUESTIONS -- by Jeffery R. Jones and James P. Babcock -- Spring, 1983, p. 42. CONDOMINIUM DEREGULATION ACT CLARIFIED -- by deffery R. Jones, Paul L. Nine and James P. Babcock -- Fall, 1983, p. 182.

CONDOMINIUM DEREGULATION IN MICHIGAN -- by James R Babcock and Jeffery R. Jones -- August, 1982, p. 157. CONDOMINIUMS: HASSLE OR CASTLE -- by Earl I. Sherman -- December, 1980, p. 172. CONSTITUTIONALITY OF TAX INCREMENT FINANCING LEGISLATION UPHELD IN ADVISORY OPINION ON CONSTITUTIONALITY OF 1986 PA 281 -- by Kester K. So -- Spring, 1989, p. 31.

COVERTURE’S LAST STAND: THE MARRIED WOMAN’S LACK OF CONTRACTUAL CAPACITY IN MICHIGAN -- by George D. Cameron, III -- June, 1981, p. 75. CURING TITLE OF AN UNRELEASED OIL AND GAS LEASE -- by David A. Lawler -- Fall, 1984, p. 417. CURRENT DEVELOPMENTS IN MICHIGAN ENVIRONMENTAL LAW -- by Joseph M. Polito -- Fall, 1985, p. 113. DEDUCTION OF "PRE-OPENING" EXPENSES -- by Andrew M. Barbas and Jonathan M. Kurtzman -- Summer, 1983, p. 77. THE DESCENT AND DISTRIBUTION OF PROPERTY WHEN THE OWNER DOES NOT MAKE A WILL -- by Allen E. Priestley -- Spring, 1983, p. 37. DETERMINING THE AMOUNT OF PARTNERSHIP DEBT INCLUDABLE IN A PARTNER’S BASIS UNDER THE NEW REGULATIONS -- by Richard S. Soble -- Fall, 1989, p. 161. DEVELOPMENTS IN REAL PROPERTY LAW: 1982-83 -- by Stephen A. Bromberg and Jeffrey R. Kravitz -- Winter, 1983, p. 217. DORMANT MINERAL ACT HELD CONSTITUTIONAL -- by Allen E. Priestley -- June, 1981, p. 80. MICHIGAN REAL PROPERTY REVIEW Winter, 1989 -- Page 303

THE EFFECT OF THE AUTOMATIC STAY PROVISIONS OF THE BANKRUPTCY REFORM ACT OF 1978 ON THE STATUTORY RIGHT OF REDEMPTION -- by Wallace M. Handler -- October, 1982, 211. THE EFFECT OF THE BANKRUPTCY AMENDMENTS AND FEDERAL JUDGESHIP ACT OF 1984 ON THE REAL ESTATE PRACTITIONER -- by Louis P. Rochkind and Jay L. Welford -- Fall, 1984, p. 442. EMINENT DOMAIN LAW FOR THE GENERAL PRACTITIONER -- by David W. Berry and Clara DeMatteis Mager -- Winter, 1989, p. 233. ENFORCEABILITY ON DUE-ON-SALE CLAUSES: THE NICHOLS AND KEMPF DECISIONS -- by Stephen G. Palms -- April, 1977, p. 2. ENVIRONMENTAL IMPAIRMENT LIABILITY INSURANCE -- by Jack D. Shumate -- Summer, 1985, p. 87. THE ENVIRONMENTAL PERILS OF LAND OWNERSHIP -- by Jack D. Shumate -- Summer, 1985, p. 92. ENVIRONMENTAL RISK ASSESSMENT FOR REAL ESTATE TRANSACTIONS -- by James M. Hatless -- Winter, 1987, p. 81. EVERYTHING YOU EVER WANTED TO KNOW BUT WERE AFRAID TO ASK ABOUT ORIGINAL ISSUE DISCOUNT (OID) AND IMPUTED INTEREST -- by Mark L. Robinson and Warren J. Ligan -- Fall, 1986, p. 77. EVICTION IN MICHIGAN: DRAFTING AND PLANNING TECHNIQUES TO ENHANCE THE LANDLORD’S POSITION -- by Lawrence R. Shoffner -- Summer, 1988, p. 89. EXEMPTIONS FROM FEDERAL REGISTRATION FOR REAL ESTATE LIMITED PARTNERSHIPS -- by Sheldon P. Winkelman and C. Leslie Banas -- December, 1977, p. 20. EXPANDED APPLICATION OF BUILDER’S TRUST FUND ACT -- by Stanley M. Weingarden -- April, 1980, p. 46. FARMLAND AND OPEN SPACE PRESERVATION ACT -- Act 116, P.A. 1974 -- by Dennis A. Conway -- February, 1975, p. 8. FARMOUT AGREEMENTS IN THE OIL AND GAS INDUSTRY -- by William H. Stephens -- Fall, 1984, p. 421. FEDERAL AND MICHIGAN LAW CHANGES AFFECTING PRIVATE PURPOSE TAX-EXEMPT FINANCING, TAX INCREMENT FINANCING AND SPECIAL ASSESSMENTS -- by James W. Bliss, Donald W. Kein, Mitchell R. Meisner, Timothy D. Sochocki and Thomas V. Yates -- Winter, 1987, p. 51. FEDERAL PREEMPTION OF STATE USURY CEILINGS UNDER PUBLIC LAW 96-161 -- by Robert H. Janover -- June, 1980, p. 76. FIRST AID FOR THE BUYER - REMEDIES FOR THE PURCHASE OF CONTAMINATED PROPERTY -- by John D. Dunn -- Winter, 1987, p. 87. FIRST MORTGAGE INTEREST RATE ON RESIDENTIAL REAL PROPERTY IN MICHIGAN -- by Patrick D. Hanes -- August, 1982, p. 169. FIXTURES, FILINGS AND REAL ESTATE MORTGAGES UNDER THE 1972 AMENDMENTS TO THE UCC -- by Asher Rabinowitz and Stanley B. Bernstein -- April, 1978, p. 2. THE FOLLIES OF MODERN ARCHITECTURE -- by Peter Blake -- August, 1975, p. 17. FORFEITURE UNDER LAND CONTRACTS: TO POSSESS OR NOT TO POSSESS -- by Alan M. Oravec -- February, 1981, p. 2. THE FORTY YEAR MARKETABLE TITLE ACT -- AFTER FORTY YEARS -- by Ralph Jossman -- Fall, 1986, p. 82. Winter, 1989 -- Page 304 MICHIGAN REAL PROPERTY REVIEW

FROM FEE SIMPLE TO FEE COMPLEX -- by Ralph Jossman -- Winter, 1985, p. 183. GARN-ST. GERMAINE AND DUE-ON-SALE CLAUSES IN MICHIGAN -- by Timothy A. Fusco -- December, 1982, p. 275. A GUIDE TO THE SECURITY DEPOSITS ACT OF 1973 -- by Harold D. Hood -- October, 1974, p. 9. HAS MY OIL AND GAS LEASE EXPIRED? THE HABENDUM CLAUSE -- by T. T. Thompson -- Summer, 1983, p. 113. HEAD START vs. FRESH START: WHEN WILL THE ABUSES STOP? -- by Robert S. Hertzberg and Michael J. Ryan -- Spring, 1986, p. 13. HIGHLIGHTS OF THE NEW MICHIGAN CONDOMINIUM ACT -- by Essel W. Bailey, William T. Myers and Robert L. Nelson -- June, 1978, p. 2. HOME CONSTRUCTION -- by John W. Steckling ~ Summer, 1984, p. 366. HOMEOWNER CONSTRUCTION LIEN RECOVERY FUND -- by Dayna Milbrand -- Summer, 1984, p. 339. HOW TO AVOID GRIEVANCES IN REAL ESTATE PRACTICE -- by Michael Alan Schwartz -- Winter, 1984, p. 482. IMPACT OF BANKRUPTCY REFORM ACT ON REAL ESTATE MORTGAGES -- by Peter A. Nathan and Stuart E. Hertzberg -- April, 1979, p. 2. IMPACT OF THE NEW RULES OF PROFESSIONAL RESPONSIBILITY ON REAL ESTATE LAWYERS -- by J. Patrick Martin and Mark W. Cherry -- Fail, 1989, p. 173. IMPACT OF NORTHRUP AND DOW ON FORECLOSURE BY ADVERTISEMENT -- by George E. Pawloski -- April, 1977, p. 11. IMPLIED COVENANTS OF EXPLORATION AND DEVELOPMENT IN OIL AND GAS LEASES -- by James R. Brown -- Fall, 1984, p. 391. INDEPENDENT PROBATE -- by Ralph Jossman -- April, 1979, p. 10. INFORMATIONAL REQUIREMENTS FOR SMALL REAL ESTATE PRIVATE OFFERINGS -- by Gaii A. Berry -- Spring, 1984, p. 303. INSURANCE AND THE STANDARD FORM OF COMMERCIAL LEASE -- by Michael W. Maddin and fan D. Pesses -- Summer, 1984, p. 350. INTERESTS ARISING UNDER AN OIL AND GAS LEASE -- by T. T. Thompson -- Fall, 1984, p. 386. INTERPRETATION: RULES IMPLEMENTING HOME PURCHASE CREDIT -- July, 1975, p. 73. THE INTERRELATION BETWEEN THE FEDERAL AND MICHIGAN LAND SALES ACTS -- by Duane E. Burgess -- June, 1979, p. 2. AN INTRODUCTION TO TIME-SHARING CONDOMINIUMS UNDER THE MICHIGAN CONDOMINIUM ACT -- by Mark S. Keegan -- August, 1982, p. 164. 1OLTA UPDATE -- by Linda K. Rexer -- Fall, 1987, p. 32. A JUDICIAL CHALLENGE TO STATUTORY FORECLOSURE -- by James W. Draper -- June, 1974, p. 4.

THE JURISDICTIONAL TIME PERIODS AND PREREQUISITES FOR FILING AND AMENDING PETITIONS BEFORE THE MICHIGAN TAX TRIBUNAL -- by Robert E. McCarthy -- Fall, 1987, p. 27. MICHIGAN REAL PROPERTY REVIEW Winter, 1989 -- Page 305

KROPF REVISITED: SOMETHING NEW IN MICHIGAN LAW -- by Avern Cohn -- December, 1974, p. 13. KROPF v CITY OF STERLING HEIGHTS: A CHANGE IN JUDICIAL REVIEW OF ZONING -- June, 1974, p. 13. LABOR AND MATERIAL PAYMENT BONDS: AN OVERVIEW -- by Ronald P. Strote -- Summer, 1988, p. 101. THE LAND CONTRACT CONDOMINIUM PURCHASER -- THE DISENFRANCHISED OWNER -- by John A. Stevens -- February, 1982, p. 3. LAND TITLE STANDARDS UPDATE -- by Andrew Cooke -- February, 1977, p. 2. LANDLORD-TENANCY PROCEEDINGS -- by David S. Snyder -- December, 1974, p. 17. LANDLORD-TENANT LAW IN DETROIT: THE COURT AND LEGAL AID -- by Ramsey A. Gregory and Lavail Hull -- August, 1974, p. 7. THE LANDLORD’S LIABILITY FOR INJURIES ON THE PREMISES -- by James Marshall -- August, 1981, p. 108. THE LAW OF FUTURE ADVANCE MORTGAGES AND THE USE OF LETTERS OF CREDIT IN FINANCING THE CONSTRUCTION OF CONDOMINIUMS -- by William S. Fambrough -- December, 1979, p. 2. THE LAW OF MUTUAL MISTAKE AND LENAWEE: SHOULD MICHIGAN ABANDON ROSE 2nd OF ABERLONE? -- by George D. Cameron, III -- Spring, 1984, p. 315. THE LAW OF PREMISES LIABILITY -- by James Marshall -- December, 1977, p. 27. THE LAWYER’S JOB AT A REAL ESTATE CLOSING -- by Norbert J. Podgorski -- August, 1974, p. 2. LEGAL RATES OF INTEREST -- by Dick Philleo -- July, 1975, p. 10. THE LEGAL RIGHTS OF THE PUBLIC IN THE FORESHORES OF THE GREAT LAKES -- by Diana V. Pratt -- Winter, 1983, p. 237. LENDER LIABILITY: THE DONE DEAL? -- by John E. Anding -- Winter, 1988, p. 259. LENDER LIABILITY: SHOULD LENDERS CARE ABOUT "DUE CARE"? -- by James L Allen -- Summer, 1989, p. 83. LIEN CLAIMANTS AND NON-TITLEHOLDERS, LESSEES AND LAND CONTRACT PURCHASERS: NEW ACT, OLD PROBLEMS -- by E. Peter Drolet and Ronald P. Strote -- Summer, 1984, p. 345. LIMITATIONS ON THE LESSEE’S USE OF THE POOLING CLAUSE -- by David A. Lawler and Richard D. Moritz -- Summer, 1986, p. 49. LIMITED PARTNERSHIP REAL ESTATE SYNDICATIONS -- SECURITIES LAW COMPLIANCE - by Lawrence S. Schultz -- October, 1975, p. 7. THE LOCAL DEVELOPMENT FINANCE AUTHORITY ACT OF 1986 - MORE TAX INCREMENT FINANCING IN MICHIGAN -- by Fred M. Woodruff -- Summer, 1987, p. 6. LOW-INTEREST MORTGAGES THROUGH LOCAL MUNICIPALITIES -- by Charles L. Burleigh, Jr. -- December, 1977, p. 2. MADHAVEN v SUCHER-REVISITED -- by Jeffrey B. Larkin -- Spring, 1983, p. 35. MAKING CLAIMS ON TITLE POLICIES -- by Alan A. Knox -- August, 1981 -- p. 119. MECHANIC’S LIEN LAW UPDATE -- by Robert S. Bolton -- June, 1977, p. 2. MECHANIC’S LIEN LAW UPDATE -- by Robert S. Bolton -- October, 1978, p. 11. Winter, 1989 -- Page 306 MICHIGAN REAL PROPERTY REVIEW

MECHANIC’S LIENS AND RESIDENTIAL BUILDERS’ LICENSES -- by Gary A. Trepod -- April, 1980, p. 52. THE MENNONITE DECISION -- by Allen E. Priestley -- Winter, 1983, p. 249. METES AND BOUNDS DESCRIPTIONS -- by John S. Hoag -- December, 1975, p. 7. MICHIGAN COURTS PAINT WITH A BROAD BRUSH IN RECENT ZONING CASES -- by Gerald A. Fisher -- Summer, 1986, p. 45. THE MICHIGAN DORMANT MINERALS ACT -- by James R. Brown -- Summer, 1983, p. 116. THE MICHIGAN HOMEOWNERS’ ASSOCIATIVE AND ARCHITECTURAL CONTROL -- by William J. Perrone -- February, 1979, p. 2. "

MICHIGAN HOUSING CODE CLAIMS AND DEFEN~SES DURING EVICTION -- by Michael G. Slaughter -- Winter, 1986, p. 115. THE MICHIGAN LAND SALES ACT: A NEW ERA OF VENDEE PROTECTION -- by Kenneth W. Schmidt -- August, 1974, p. 13. MICHIGAN LAND TITLE STANDARDS -- by Myron Winegarden -- August, 1975, p. 13. MICHIGAN LAND TITLE STANDARDS, FOURTH EDITION -- by Ralph Jossman -- Spring, 1983, p. 30. MICHIGAN LAND TITLE STANDARDS: 1978 SUPPLEMENT -- by Ralph Jossman -- February, 1978, p. 2. MICHIGAN SOIL EROSION AND SEDIMENTATION CONTROL ACT OF 1972 -- by Edward B. Stulberg -- February, 1975, p. 12. MICHIGAN REGISTERS OF DEEDS PRACTICE -- by Willard G. Moseng -- Summer, 1989, p. 91. MICHIGAN STATUTORY INTEREST RATE CEILINGS IMPOSED BY STATE LAW -- February, 1982, p. 10. THE MICHIGAN TRUTH-IN-RENTING ACT -- by Edward C. Dawda -- April, 1979, p. 20. MICHIGAN’S NEW CONSTRUCTION LIEN ACT -- by Robert S. Bolton, Patrick D. Hanes, A. Deane Malaker, Peter A. Nathan, Richard W. Pennings, and Stanley M. Weingarden -- April, 1982, p. 41. MICHIGAN’S NEW STATUTE ON MARRIED WOMEN’S CONTRACTUAL CAPACITY: THE END OF COVERTURE? -- by George D. Cameron, III -- December, 1982, p. 280.

THE MOBILE HOME: PROBLEMS WITH ITS RECOGNITION AS A VALID HOUSING SOURCE -- by Geoffrey L. Neithercut -- December, 1975, p. 14. MORE ON MECHANIC’S LIENS -- by G. Norman Gilmore -- August, 1977, p. 5. THE MORTGAGE BROKERS, LENDERS, AND SERVICERS LICENSING ACT OF 1987 -- by Murray E. Brown -- Spring, 1988, p. 27. MORTGAGE FORECLOSURE SALES AS FRAUDULENT CONVEYANCES -- by Ronald P. Strote -- Spring, 1986, p. 8. NEGOTIATING ENVIRONMENTAL PROVISIONS IN REAL ESTATE TRANSACTIONS -- by Alan S. Levine -- Winter, 1987, p. 74. NEW REAL ESTATE REPORTING REQUIREMENTS: A LITTLE MORE SALT FOR THE WOUNDS -- by Kaplin S. Jones and Nyal D. Deems -- Spring, 1988, p. 15. MICHIGAN REAL PROPERTY REVIEW Winter, 1989 -- Page 307

NEW TITLE STANDARDS -- by Ralph Jossman -- February, 1980, p. 9.

1978 DECISIONS BY THE COURT OF APPEALS AND MICHIGAN TAX TRIBUNAL AFFECTING ASSESSMENTS OF REAL PROPERTY -- by Michael B. Shapiro -- August, 1979, p. 4. 1979 TAX TRIBUNAL DECISION -- by Michael B. Shapiro -- August, 1980, p. 108. OFFERING LIMITED PARTNERSHIP INTERESTS UNDER THE NEW MICHIGAN PRIVATE OFFERING EXEMPTIONS -- by Joel J. Morris -- February, 1980, p. 2. OREGON vs MICHIGAN -- by Avern Cohn -- December, 1975, p. 7. OUTLINE OF MECHANIC’S LIEN LAW IN MICHIGAN -- August, 1976, p. 4. AN OVERVIEW OF THE BANKRUPTCY JUDGES, UNITED STATES TRUSTEES AND FAMILY FARMER BANK- RUPTCY ACT OF 1986 -- by Jay L. Welford -- Winter, 1986, p. 129. PARKER REVISITED: HAS THE LAW OF GOVERNMENTAL IMMUNITY BECOME A CONCERN IN THE DEVELOP- MENT OF PUBLIC SERVICE FACILITIES? -- by Jack D. Shumate -- Summer, 1983, p. 75. PENDING LEGISLATION REGARDING MICHIGAN’S MECHANIC’S LIEN LAW -- by Richard W. Pennings -- April, 1980, p. 38. POINT SYSTEM -- by John A. Scott -- December, 1974, p. 19. THE POINT SYSTEM -- by Frank S. Sengstock -- October, 1974, p. 1. POOLING AND UNITIZATION IN MICHIGAN -- by Thomas A. Nelson -- Summer, 1989, p. 103. POTENTIAL RULE AGAINST PERPETUITIES EFFECTS ON COMMON OIL, GAS AND MINERAL TRANSACTIONS -- by E. Dan Stevens -- Fall, 1984, p. 437. PRACTICE UNDER THE UNIFORM CONDEMNATION ACT -- by Walter B. Mason and Frederick D. Steinhardt -- Fall, 1983, p. 177. PRESERVATION TAX CREDITS: EVERYBODY WINS -- by Janet L. Kreger -- December, 1982, p. 286.

APRIMER FOR MICHIGAN REAL ESTATE PRACTITIONERS ON BANKRUPTCY TRUSTEE AVOIDANCE POWERS -- by Jacqueline K. Vestevich and Robert D. Moilhagen -- Winter, 1989, p. 223. PROCEDURE TO ESTABLISH A CONDOMINIUM UNDER THE DEREGULATION ACT -- by James P. Babcock and Jeffery R. Jones -- Fall, 1983, p. 1984. PROPERTY TAX RELIEF FOR CONTAMINATED PROPERTY -- by Julianna B. Miller -- Fall, 1989, p. 167. PROPOSED AMENDMENT TO CHAPTER 32, REVISED JUDICATURE ACT (MCL SECTION 600.3201 et seq.) RELATIVE TO PROVIDING NOTICE AND OPPORTUNITY FOR HEARING PRIOR TO FORECLOSURE BY ADVERTISEMENT -- by William B. Dunn -- August, 1975, p. 7. PRO-RATING TAXES -- by Frank S. Sengstock -- February, 1975, p. 1. PRORATION OF TAXES -- by Frank S. Sengstock -- April, 1975, p. 37.

REAL ESTATE MALPRACTICE EXPERIENCE IN MICHIGAN -- by William C. Roush -- Summer, 1985, p. 53. REAL ESTATE MALPRACTICE EXPERIENCE -- AN UPDATE -- by William C. Roush -- Summer, 1988, p. 67. Winter, 1989 -- Page 308 MICHIGAN REAL PROPERTY REVIEW

REAL ESTATE MALPRACTICE RISKS IN THE USE OF LEGAL FORMS -- by William C. Roush -- Winter, 1984, p. 465. REAL ESTATE SETTLEMENT PROCEDURES ACT OF 1974 -- by William B. Dunn -- April, 1975, p. 1. REAL ESTATE SETTLEMENT PROCEDURES ACT OF 1974 -- UPDATED -- by William B. Dunn -- July, 1975, p. 23. REAL ESTATE TRANSACTIONS IN THE AGE OF SARA -- by Jack D. Shumate -- Winter, 1987, p. 70. REAL ESTATE TRANSACTIONS UNDER THE REVISED PROBATE CODE -- by Edward C. Dawda -- February, 1980, p. 13. REAL PROPERTY ASSESSMENTS: SIGNIFICANT LEGISLATION AND DECISIONS IN 1976 -- by John R. Baker -- June, 1977, p. 25. " REAL PROPERTY LAW 1981 (PART I) -- by Allen Schwartz and Sally S. Harwood -- October, 1981, p. 137. REAL PROPERTY LAW 1981 {PART II) -- by Allen Schwartz and Sally S. Harwood -- December, 1981, p. 179. REAL PROPERTY LAW, 1981-82 -- by William B. Dunn and Edward C. Dawda -- October, 1982, p. 189. RECENT DECISIONS BY MICHIGAN TAX TRIBUNAL AND COURT OF APPEALS AFFECTING ASSESSMENTS OF REAL PROPERTY -- by Michael B. Shapiro -- August, 1978, p. 41. RECENT DEVELOPMENTS IN REAL PROPERTY LAW -- by Richard E. Rabbideau and William L. Cooper -- Spring, 1985, p. 3. RECENT MICHIGAN SUPERFUND ACTIONS -- by Jack D. Shumate -- Summer, 1985, p. 97. RECENT ZONING ENABLING LEGISLATION: A BEGINNING WITH PROMISE -- by Gerald A. Fisher -- October, 1979, p. 9. RECORDING LAND CONTRACT AND LEASE MEMORANDA -- by Carol Ann Martinelli and Willard G. Moseng -- Summer, 1986, p. 31. RECOVERY OF INTEREST OR FINANCE CHARGES IN CONSTRUCTION LIEN FORECLOSURE ACTIONS -- by Lawrence M. Dudek -- Summer, 1987, p. 3. REGULATION OF THE REAL ESTATE PROFESSION IN MICHIGAN -- by George J. Siedel, III -- June, 1982, p. 124. REGULATION OF UNDERGROUND STORAGE TANKS IN MICHIGAN -- by Robert A. Hykan and John C. Burchett m Winter, 1989, p. 215.

REIMBURSEMENT OF ATTORNEY FEES AND LITIGATION COSTS UNDER THE UNIFORM CONDEMNATION PROCEDURES ACT -- by Boris K. Yakima -- Winter, 1989, p. 249. REJECTION OF LAND CONTRACT AS EXECUTORY CONTRACT IN BANKRUPTCY PROCEEDINGS OF VENDOR -- by Stephen A. Bromberg -- February, 1979, p. 20. THE REORGANIZING DEBTOR AND UNEXPIRED LEASES OF NONRESIDENTIAL REAL PROPERTY -- by Brian L. Donovan -- Winter, 1988, p. 243. REPORT OF THE SUBCOMMITTEE OF THE REAL PROPERTY SECTION ON PROPOSED REVISIONS TO MICHIGAN STATUTORY FORECLOSURE OF MORTGAGES LAW -- July, 1975, p. 13. REPORTING REAL ESTATE SALES - THE 1986 TAX REFORM ACT -- by Carol Ann Marfinelli -- Spring, 1987, p. 8. RESIDENTIAL CLOSING PROBLEMS -- by Philip R. Seaver -- Summer, 1983, p. 85. MICHIGAN REAL PROPERTY REVIEW Winter, 1989 -- Page 309

RESOLVING CONSTRUCTION DISPUTES: ALTERNATIVES TO LITIGATION -- by Mary A. Bedikian -- Winter, 1988, p. 249. RESOLVING CONSTRUCTION PROJECT CHANGES -- by David M. Hayes and Sheryl A. Moody -- Fall, 1989, p. 151. RESOLVING REAL ESTATE VALUATION DISPUTES BY ARBITRATION -- by Lamont M. Walton -- Fall, 1983, p. 191. A RESPONSE TO KROPF -- by Avern Cohn -- June, 1974, p. 13. REVENUE ACT OF 1978: EFFECT UPON INDEXING REQUIREMENTS OF FEDERAL TAX LIENS -- by Richard H. Schloss -- August, 1979, p. 2.

THE REVENUE ACT OF 1978: TAX CHANGES FOR HOMEOWNERS, REAL ESTATE INVESTORS AND FARMERS -- by Fred W. Brenner and L. Fallasha Erwin -- October, 1979, p. 21. REVISION OF TAX LIEN CHAPTER OF THE TITLE STANDARDS -- Ralph Jossman -- August, 1977, p. 13. SALE OF HUD PROJECTS -- "TRANSFER OF PHYSICAL ASSETS" -- by Jefferson E Riddell -- April, 1981, p. 24. A SECONDARY IMPACT OF $11.~/A -- by Norman Hyman -- Summer, 1983, po 68. THE SECURITY DEPOSITS ACT OF 1973 -- by James M. Szkrybalo -- October, 1974, p. 7. SECURITY INTERESTS IN "FIXTURES" UNDER THE 1978 AMENDMENT TO THE MICHIGAN UNIFORM COMMERCIAL CODE -- by Gary A. Taback, December, 1978, p. 11. SELF-HELP: AN INTRUSION INTO THE TENANT’S RIGHTS -- by Lavail Hull -- April, 1975, p. 17. SHARE LOAN FINANCING FOR THE COOPERATIVE MEMBER -- by Michele Cubbison and James N. Candler, Jr. -- Spring, 1988, p. 9. A SHORT ESSAY ON DOWER’S ERODING FOUNDATION -- by Roger A. Petzke -- October, 1977, p. 2. SOLAR EASEMENTS UNDER HB 4083 and HB 4127 -- by Deane Malaker -- June, 1980, p. 66. SOME CONSIDERATIONS IN DRAFTING AN OFFER TO PURCHASE -- Aiken -- August, 1974, p. 5. SOME MORE THOUGHTS ON PRORATION -- (LETTERS TO EDITOR) -- July, 1975, p. 2; October, 1975, p. 34. SPACING AND POOLING IN MICHIGAN -- by Terence V. Lynam and William H. Stephens, III -- Summer, 1983, p. 136. STATEMENT CONCERNING HOUSE BILL NO. 4095 -- by Louis P. Rochkind -- Summer, 1983, p. 146. STATUS OF WILLIAMS AND WORKS, INC. v SPRINGFIELD CORPORATION, ET AL -- by James W. Batchelor -- April, 1980, p. 55. STATUTES PROMOTING MARKETABILITY OF OIL AND GAS TITLES: THE MICHIGAN DORMANT MINERALS ACT AND ITS COUNTERPARTS AFTER TWENTY-FIVE YEARS -- by James R. Brown -- Fall, 1988, p. 145. SUBDIVISION CONTROL AT THE CROSSROADS -- by Jack D. Shumate -- October, 1979, p. 17. SUMMARY OF THE PUBLIC ACTS OF 1982 RELATING TO REAL PROPERTY LAW -- by Thomas L. Lapka, Gregory L. McClelland and Robert J. McCullen -- Spring, 1983, p. 25. SUMMARY OF THE PUBLIC ACTS OF 1983 RELATING TO REAL PROPERTY LAW -- by Thomas L. Lapka, Gregory L. McClelland and Robert J. McCullen -- Spring, 1984, p. 319. Winter, 1989 -- Page 310 MICHIGAN REAL PROPERTY REVIEW

SUMMARY OF THE PUBLIC ACTS OF 1984 RELATING TO REAL PROPERTY LAW -- by Thomas L. Lapka, Gregory L. McClelland and Robert J. McCullen -- Spring, 1985, p. 15. SUMMARY OF THE PUBLIC ACTS OF 1985 RELATING TO REAL PROPERTY LAW -- by Gregory L. McClelland and Gaff A. Anderson -- Spring, 1986, p. 16. SUMMARY OF THE PUBLIC ACTS OF 1986 RELATING TO REAL PROPERTY LAW -- by Gregory L. McClelland and Gall A. Anderson -- Spring, 1987, p. 13. SUMMARY OF THE PUBLIC ACTS OF 1987 RELATING TO REAL PROPERTY LAW -- by Gregory L. McClelland and Gall A. Anderson -- Spring, 1988, p. 33. SUMMARY OF THE PUBLIC ACTS OF 1988 RELATING TO REAL PROPERTY LAW -- by Gregory L. McClelland, Gail A. Anderson and Kim D. Crooks -- Spring, 1989, p. 23. A SURVEY OF PUBLIC FINANCIAL ASSISTANCE~TO REAL ESTATE DEVELOPMENT -- by Frank L. Andrews, Gerald P. LaHaie, Thomas S. Leven, Dennis R. Neiman, and Jefferson E Riddell -- Spring, 1983, p. 3. SYNDICATIONS AND OTHER AREAS OF REAL ESTATE FINANCING IN THE 1980’s -- by Craig Hall -- December, 1981, p. 189. SYNDICATIONS OF REAL ESTATE INVESTMENTS IN MICHIGAN -- by Joel J. Morris -- December, 1978, p. 2. TAX CREDIT FOR PURCHASE OF NEW PRINCIPAL RESIDENCE -- April, 1975, p. 30. TAX DELINQUENCY -- by Russell E. Prins -- December, 1981, p. 170. THE TAX TRIBUNAL -- by Richard J. Sullivan -- July, 1975, p. 3. THE TIME PRICE DIFFERENTIAL: A BOND CLAIMANT’S VEHICLE FOR RECOVERY OF SERVICE CHARGES -- by Robert R. Nix, II -- June, 1982, p. 121. TIME SHARE CONDOMINIUMS - by Gary J. Mclnerney -- December, 1981, p. 164. TIME SHARE LAW AND THE 1984 BANKRUPTCY AMENDMENTS -- by John D. Fershee -- Spring, 1986, p. 3. TITLE INSURANCE FOR THE OWNER: COMMITMENT AND POLICY -- by Robert S. Olivier, Lee P. Mohnkern and James P. Lanzetta -- Spring, 1987, p. 3. A TITLE INSURER LOOKS AT THE CONSTRUCTION LIEN ACT -- by Deane Malaker -- June, 1981, p. 42. TREATMENT OF LAND CONTRACTS IN BANKRUPTCY-EXECUTORY CONTRACTS OR LIENS? -- by Louis P. Rochkind and Jay L. Welford -- Winter, 1984, p. 484. TREATMENT OF MICHIGAN LAND CONTRACTS IN CHAPTER 11 AND CHAPTER 13 CASES: IMPACT OF THE VENDEE’S BANKRUPTCY -- by Patrick E. Mears -- Winter, 1988, p. 231. TRUTH AND CONSEQUENCES: THE STATUTE OF FRAUDS AND ADMISSIONS IN COURT -- by George D. Cameron, III -- Winter, 1985, p. 186. TURKISH AND THE FUTURE -- by Michael H. Feller -- October, 1980, p. 142. THE UNIFORM STATUTORY RULE AGAINST PERPETUITIES: FIXING WHAT ISN’T BROKEN -- by William A. Siebert -- Summer, 1989, p. 99. U.S. SUPREME COURT DENIES CERTIORARI IN MICHIGAN DORMANT MINERAL ACT CASES -- by Allen E. Priestley -- June, 1982, p. 139. MICHIGAN REAL PROPERTY REVIEW Winter, 1989 -- Page 311

VENDOR’S LIABILITY FOR PHYSICAL DEFECTS -- by William F. Nern -- August, 1977, p. 2. VOTING RIGHTS FOR LIMITED PARTNERS UNDER MICHIGAN’S REVISED UNIFORM LIMITED PARTNERSHIP ACT -- by Thomas S. Vaughn -- December, 1982, p. 261. WHY NEW HOUSES COST TOO MUCH -- by Arthur M. Watkins -- August, 1975, p. 15. WILLIAMS & WORKS v SPRINGFIELD CORPORATION REVERSED -- by James W. Batchelor -- August, 1980, p. 111. ZAAGMAN AND TURKISH: HAS REZONING BECOME IMPRACTICAL? -- by Stephen A. Bromberg -- October, 1979, p. 2. ZONING LITIGATION: APPROACHES AND PREPARATION TECHNIQUES -- by Stephen A. Bromberg -- October, 1978, p. 2. ZONING LITIGATION: THE DISTINCTION BETWEEN CONFISCATION AND SUBSTANTIVE DUE PROCESS -- by David W. Berry and David J. Portelli -- Summer, 1988, p. 61.