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Beware the Lawnmower Man

A recent unpublished decision of the Michigan Court of Appeals regarding a property line dispute reminds us that even the most innocuous practices can change the results of a case . . . even the mowing of one’s lawn. In the case of Andrews v Alter 2013 WL 3942389, the Michigan Court of Appeals relied heavily on the lawn cutting activities of Robert Mulligan, hired by Defendant Denise Alter, to reach their decision.

The case involved a dispute over the exact location of the property line between two neighbors, Ms. Alter and the Andrews brothers, Edward and Alan.

The story begins in 1983 when Joe and Ruth Cabot built the home that still sits on lot 32. At that time, they obtained an easement from the owner of the adjacent lot 31, Mr. Andrews. To comply with certain zoning set back requirements for the construction of the Cabot's house.

Since that time, both neighbors used and maintained their property without obtaining a detailed survey to identify the proper lot lines.

Subsequently, the owner of lot 31 passed away and his sons, Edward and Alan Andrews, took over possession of the property. We'll call them Owner A.

Ms. Alter (and her now deceased husband) purchased the Cabot’s home in 1988. We'll call them Neighbor B. Ms. Alter (Neighbor B) hired Robert Mulligan to mow her lawn, who did so all but one year, and he simply began mowing from the point at which the Andrews (Owner A) stopped mowing their lawn.

Not until 2008 (25 years after the original house on Lot 32 was built) did the Andrews have a survey prepared, which is when they brought suit against Ms. Alter. The Andrews believed that the property line was the one shown on the survey, while Ms. Alter argued that the parties, by their actions over a period of 20+ years, had created a new property line.

The resulting case turned on the concept of acquiescence. According to the Michigan Court of Appeals, acquiescence to a boundary line may be established if the boundary line is acquiesced in over the proper statutory period, regardless of whether there was ever a controversy regarding the location of the line. In other words, if Owner A allows a Neighbor B to use A’s property as if it was his own, even without knowledge or intent, B may eventually establish title to that portion of A’s property.

In the case in question, Alter (B) argued that the Andrews' (A) had acquiesced to the location of the boundary during a statutory period of years. Since 1988, Robert Mulligan mowed Ms. Alter’s lawn following a specific path based on the point at which the Andrews stopped mowing their lawn. No one ever challenged Mr. Mulligan in the conduct of his mowing. The Court also observed that Ms. Alter’s deck and driveway encroached onto the Andrews’ property for more than 20 years, and the Andrews never objected.

The trial court concluded that the mowing did not reflect Ms. Alter’s belief as to the location of the property line. But the Court of Appeals overturned the trial court’s decision. The Court of Appeals noted that under the theory of acquiescence, it is not the parties’ actual knowledge or belief that is considered. Instead, the pertinent inquiry is whether the parties treated a particular boundary line as the property line. Since the parties all mowed to the same line and there were other encroachments, the Court of Appeals held that Ms. Alter had established acquiescence and had property rights up to the established property line.

The moral. . . “keep your eye on your lawn mower” or “keep your eye on where your lawn mower mows”.

 

Gary A. Kravitz

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