Juan Carlos takes a look. No Problem. The peak on the side of his house has needed painting for some time. In preparation to paint, Juan drives to Home Depot, as every working man must do. There he purchases a 32 foot extension ladder. He decides on the 32 footer over the 24 footer because, as an overpaid office executive, he thinks What the hell?
His nickname is 'Big Juan'. He believes he has earned this tag through the use of his new Bowflex machine. Unknown to Juan, the girls at the office call him 'Big Juan' because of the dozen donuts he polishes off each morning at his desk. Great minds must have proper fuel.
On his return from Home Depot, Juan struggles mightily with his new ladder. Be the time he reaches the side of his house, he is sweating profusely and the muscles in his low back are cramping. Wasn't Bowflex supposed to prevent this? Welcome to the life of a laborer Juan! Juan seems to be 'Clueless in Seattle'. At last the ladder is up. He begins his ascent. Fear grips him as he reaches the top of the peak. A very natural fear of heights. He is so nervous that it seems likely he will be cleaning something other than his paint brush by the end of the day. Poor Juan.
Well, after six hours of hard labor, and a cycle through the washing machine, the job is finally complete. While admiring his work and sipping on his favorite soda in the comfort of his new briefs, Juan is struck by a menacing reality. He has nowhere to store his ladder. Later that day, he walks across the street to Mr. Thompson's house and asks if he can store his ladder in Mr. Thompson's spacious three-car garage. Mr. Thompson answers: "no problem." As luck would have it, Mr. Thompson is a property attorney. As the meticulous type, Mr. T offers to grant Juan an easement for the purpose of storing his ladder.
What follows is a basic discussion of the easement created in gross versus the easement created appurtenant.
First off, what is an easement? An easement is a right to use the land of another. The holder of an easement is not permitted to occupy or control the land on which the easement sits. The holder is only entitled to the use of the easement to fulfill a specific purpose; usually to get from point A to point B. In this article I am presuming a voluntary grant of easement. Prescriptive easements and easements by necessity will not be discussed in this article. Furthermore, although a typical easement does not allow for occupancy or control of the land, the parties are free to establish the terms of the easement as they see fit. My discussion in this article will stick with the usual easement agreement.
I will now discuss the easement appurtenant. I believe that by first understanding the easement appurtenant, the easement in gross will be very easy for the reader to comprehend.
An easement appurtenant requires two parcels of land; although there may certainly be more. The parcel that benefits from the creation of the easement is known as the dominant tenement. Conversely, the parcel that is burdened by the creation of the easement is known as the servient tenement. Now, there is one principle that the reader must memorize: for an appurtenant easement to be created, there must be a dominant tenement. The following example will help clarify the meaning and function of an easement appurtenant:
Blackacre, owned by Julie Phillips, abuts the west side of a public road. Whiteacre, owned by Dave Phillips, abuts the west side of Blackacre. Whiteacre has no direct access to the public road. Now, let's assume that Julie, owner of Blackacre, grants Dave, owner of Whiteacre, an easement over the southerly 15 feet of Blackacre for the purpose of giving Dave access to the public road. Well, after this grant, what do we have? Blackacre will be the servient tenement, as the easement runs across it. Whiteacre will be the dominant tenement, as the easement benefits Whiteacre. This is an example of a true blue appurtenant easement. Here we have two parcels of land and a dominant tenement: Whiteacre. This newly created easement will attach to both Blackacre and Whiteacre. The significant importance in finding an easement appurtenant is this: the benefit and the burden of the easement will run with the successive chain of title. It will automatically flow through to future owners or tenants unless and until the easement is properly terminated. Remember, a valid appurtenant easement requires a dominant tenement.
Finally, let me circle back to the easement in gross. Reflect back to my story concerning Juan Carlos. As you recall, Mr. Thompson granted Juan an easement for the purpose of storing his ladder. Why is this an easement in gross and not an easement appurtenant? Answer: Juan holds an easement in gross because there is no dominant tenement. Notice, however, that we do have a servient tenement. Mr. Thompson's land will be burdened with the easement. But there is no land that benefits from the easement. Juan benefits solely from the easement. Therefore, the easement is personal to Juan and is classified as an easement in gross.
I am frequently asked about easements. Oftentimes someone will get tripped up when attempting to distinguish the easement appurtenant from the easement in gross. Understanding the variations is important to property professionals involved in land transactions. The practitioner should always be concerned with what benefits or burdens the land in their particular transaction. As a general rule, when you are faced with attempting to qualify an easement, ask yourself: is there a dominant tenement? If so, chances are you are looking at an appurtenant easement.
More soon - dave
Thursday, August 28, 2008
Saturday, August 9, 2008
Michigan's Adverse Possession Doctrine
Hello. It is Saturday morning, August 9. I am at the Novi library, where I am composing this article. Today's writing will concern Michigan's Adverse Possession Doctrine. It happened to pop into my head this morning, and it seems a good topic for my morning coffee. You may notice that I frequently use the word doctrine in my titles. Doctrine can be defined as a rule or principle of law. Doctrine encompasses the study of a particular law or body of law. As a result, doctrine can be broadly used. I also happen to like the word.
This article is being written for the layperson. Most property professionals understand adverse possession, at least basically. You may be surprised to learn that outright land ownership is not always accomplished through a buy-sell agreement. Ownership may also be found by satisfying the elements for adverse possession. The adverse possessor will, in effect, steal the land from its true owner. Adverse possession is the 800 pound tiger. When this tiger strikes, your time is up. When you complete the reading of my article, you will better understand the saying "possession is 9/10ths of the law."
Land is usually transferred from a seller to a buyer, with money changing hands. A deed is executed and recorded and life goes on. Conversely, adverse possession requires no money and requires no consent from the record owner. What it does require is the satisfaction of a group of elements and a court determination that these elements have been fulfilled. When adverse possession is found in the claimant, the true or prior owner loses all rights in the property and the adverse possessor's interest ripens into a fee simple absolute. This is heavy handed, tough stuff. Understand, adverse possession, although harsh, is not easy to prevail on. Rule number 1: the adverse possessor must possess the land in question for a minimum 15 year period. When the 15 year period runs, the possessor must then set out to show satisfaction of all the elements for adverse possession. Now, let me walk you through the function of adverse possession.
Fact Scenario:
It is January 1, 1993. Dave Phillips lives in Oklahoma. He enjoys riding his horse to work, as this saves on gas expenditures. His cowboy hat offers adequate protection from the elements. Riding his horse "trigger" also enables him to freely chew 'Red Man' without the inconvenience of a messy spit cup.
Concurrently, Dave owns 3 acres of improved property in Alanson, Michigan. Dave resides in Oklahoma, works in Oklahoma, and has no real plans on returning to Michigan.
Is it now February 1, 1993. For reasons that need not concern us, Mr. Harvey Nogood has a key to Dave's Alanson property and he begins to actually reside in Dave's Alanson home. The no-good fink!
Fast forward: It is now July 1, 2008, 15 years later, and Dave still has not returned to his Alanson property. As of July 1, 2008, who owns the Alanson property? Answer: Mr. Harvey Nogood, if and only if Mr. Nogood can satisfy all the elements for adverse possession. Let's examine them.
The elements of Adverse Possession are: (1) The possessor's use must be open; (2) The possessor's use must be continuous; (3) The possessor's use must be exclusive; (4) The possessor's use must be adverse; and (5) The possessor's use must be notorious. Now, I will discuss the open, continuous and adverse elements only. The exclusive and notorious elements overlap with the continuous and adverse elements. This makes the discussion much easier for the reader to understand.
Condition precedent: As I have mentioned, the elements of open, continuous and adverse must be demonstrated for a full 15 year period. This 15 year period acts as a condition precedent to the establishment of title via adverse possession. Once 15 years expire, the possessor is then free to prove its satisfaction of the necessary elements, but not until this period has elapsed. This time period is codified, as shown in 600.5801 of the Michigan Compiled Laws (MCL). This is a statute of limitation. This statute imposes responsibilities on the true owner of the land. What the statute says is this: Dave, you have 15 years in which to eject Mr. Nogood from your property. If you fail to do so, you will be forever barred from filing an ejectment action. So you see, this statute applies to Dave, not Mr. Nogood.
Using our example, let's see how Mr. Nogood prevails.
First off, the condition precedent has been satisfied. Mr. Nogood has been residing in the property since February of 1993. The 15 year period in which Dave was charged with bringing an action for ejectment has expired.
Now Mr. Nogood can set forth to prove satisfaction of the necessary elements. I say OCA, which is shorthand for open, continuous and adverse.
The open element: Mr. Nogood must demonstrate that he openly possessed the land. The open element is designed from the perspective of other people. In other words, did Mr. Nogood hide the fact that he was residing in the Alanson property? Did he show up in the dead of the night and leave before dawn? This is a very practical element and it simply asks the question: was Mr. Nogood's occupancy visible to neighbors in a normal setting, or did he attempt to hide the fact that he was residing at the Alanson home? For the purposes of our discussion, let's say that Mr. Nogood made no secret that he was residing in the home. He could be seen on the land either day or night. So, Mr. Nogood prevails concerning the open element.
The continuous element: This element is extremely important. The question is: was Mr. Nogood's occupancy of the land continuous enough, over the 15 year period, to cause a normal person to believe he was residing there? Or were there periods of say 6 months or 2 years in which Mr. Nogood was not present? If there were unreasonable periods of absence, Mr. Nogood would not prevail on this element. For the purposes of our discussion, let's say Mr. Nogood continually resided at the Alanson home. In fact, he worked just down the road at Jan and Sandy's Knitting Factory. So, Mr. Nogood prevails concerning the continuous element.
The adverse element: The adverse element is at the heart of adverse possession. The question is: is Mr. Nogood's occupancy without Dave's consent? In our example, the answer is obvious: Dave gave no consent to Mr. Nogood. But what if Dave knew Mr. Nogood and was simply giving him a place to stay? If this were true, Mr. Nogood would not prevail on this most basic element. The possession must be adverse to Dave, hence giving rise to a cause of ejectment. After all, how can you eject someone who has your permission to be on the land? So, Mr. Nogood prevails on the adverse element.
In summary, Mr. Nogood has met the statutory 15 year time period and has satisfied the 3 elements of adverse possession. Now what? Well, nobody in their right mind would accept a deed from Mr. Nogood to the Alanson property. A search of the Emmet County Register of Deeds office would disclose Dave as the owner. So what would Mr. Nogood do? He would prudently file to 'quiet title' in himself. The court would then set out to favor or disfavor Mr. Nogood's position based on the doctrine of Adverse Possession. Once adverse possession is proven, Mr. Nogood will be declared the true owner and he will be free to convey the land free from any legal claim posited by Dave.
Conclusion: Adverse possession is devastating to an unsuspecting land owner. The use of this doctrine should strike the reader as idiotic. After all, in today's world, why would the courts allow such an unjust result? Dave did nothing wrong! Well, the simplest answer is this: adverse possession allows for cleaner land records. It allows a court to perfect a chain of title. Without this doctrine, disputes over title could theoretically go on forever. The numerous statutes of limitation take their roots from this reasoning. In effect, life is just too short. A statute of limitation allows for a particular terminus or ending. It gives individuals peace of mind and an absolute conclusion to a particular legal matter. The adverse possession doctrine inspires a land owner not to sleep on their rights. Furthermore, if someone has neglected property for 15 or more years, and the adverse possessor is making use of the land, isn't it more functional and practical to pass title to the adverse possessor? I think so. And remember, although adverse possession is harsh, 15 years is an awfully long time.
More soon - dave
This article is being written for the layperson. Most property professionals understand adverse possession, at least basically. You may be surprised to learn that outright land ownership is not always accomplished through a buy-sell agreement. Ownership may also be found by satisfying the elements for adverse possession. The adverse possessor will, in effect, steal the land from its true owner. Adverse possession is the 800 pound tiger. When this tiger strikes, your time is up. When you complete the reading of my article, you will better understand the saying "possession is 9/10ths of the law."
Land is usually transferred from a seller to a buyer, with money changing hands. A deed is executed and recorded and life goes on. Conversely, adverse possession requires no money and requires no consent from the record owner. What it does require is the satisfaction of a group of elements and a court determination that these elements have been fulfilled. When adverse possession is found in the claimant, the true or prior owner loses all rights in the property and the adverse possessor's interest ripens into a fee simple absolute. This is heavy handed, tough stuff. Understand, adverse possession, although harsh, is not easy to prevail on. Rule number 1: the adverse possessor must possess the land in question for a minimum 15 year period. When the 15 year period runs, the possessor must then set out to show satisfaction of all the elements for adverse possession. Now, let me walk you through the function of adverse possession.
Fact Scenario:
It is January 1, 1993. Dave Phillips lives in Oklahoma. He enjoys riding his horse to work, as this saves on gas expenditures. His cowboy hat offers adequate protection from the elements. Riding his horse "trigger" also enables him to freely chew 'Red Man' without the inconvenience of a messy spit cup.
Concurrently, Dave owns 3 acres of improved property in Alanson, Michigan. Dave resides in Oklahoma, works in Oklahoma, and has no real plans on returning to Michigan.
Is it now February 1, 1993. For reasons that need not concern us, Mr. Harvey Nogood has a key to Dave's Alanson property and he begins to actually reside in Dave's Alanson home. The no-good fink!
Fast forward: It is now July 1, 2008, 15 years later, and Dave still has not returned to his Alanson property. As of July 1, 2008, who owns the Alanson property? Answer: Mr. Harvey Nogood, if and only if Mr. Nogood can satisfy all the elements for adverse possession. Let's examine them.
The elements of Adverse Possession are: (1) The possessor's use must be open; (2) The possessor's use must be continuous; (3) The possessor's use must be exclusive; (4) The possessor's use must be adverse; and (5) The possessor's use must be notorious. Now, I will discuss the open, continuous and adverse elements only. The exclusive and notorious elements overlap with the continuous and adverse elements. This makes the discussion much easier for the reader to understand.
Condition precedent: As I have mentioned, the elements of open, continuous and adverse must be demonstrated for a full 15 year period. This 15 year period acts as a condition precedent to the establishment of title via adverse possession. Once 15 years expire, the possessor is then free to prove its satisfaction of the necessary elements, but not until this period has elapsed. This time period is codified, as shown in 600.5801 of the Michigan Compiled Laws (MCL). This is a statute of limitation. This statute imposes responsibilities on the true owner of the land. What the statute says is this: Dave, you have 15 years in which to eject Mr. Nogood from your property. If you fail to do so, you will be forever barred from filing an ejectment action. So you see, this statute applies to Dave, not Mr. Nogood.
Using our example, let's see how Mr. Nogood prevails.
First off, the condition precedent has been satisfied. Mr. Nogood has been residing in the property since February of 1993. The 15 year period in which Dave was charged with bringing an action for ejectment has expired.
Now Mr. Nogood can set forth to prove satisfaction of the necessary elements. I say OCA, which is shorthand for open, continuous and adverse.
The open element: Mr. Nogood must demonstrate that he openly possessed the land. The open element is designed from the perspective of other people. In other words, did Mr. Nogood hide the fact that he was residing in the Alanson property? Did he show up in the dead of the night and leave before dawn? This is a very practical element and it simply asks the question: was Mr. Nogood's occupancy visible to neighbors in a normal setting, or did he attempt to hide the fact that he was residing at the Alanson home? For the purposes of our discussion, let's say that Mr. Nogood made no secret that he was residing in the home. He could be seen on the land either day or night. So, Mr. Nogood prevails concerning the open element.
The continuous element: This element is extremely important. The question is: was Mr. Nogood's occupancy of the land continuous enough, over the 15 year period, to cause a normal person to believe he was residing there? Or were there periods of say 6 months or 2 years in which Mr. Nogood was not present? If there were unreasonable periods of absence, Mr. Nogood would not prevail on this element. For the purposes of our discussion, let's say Mr. Nogood continually resided at the Alanson home. In fact, he worked just down the road at Jan and Sandy's Knitting Factory. So, Mr. Nogood prevails concerning the continuous element.
The adverse element: The adverse element is at the heart of adverse possession. The question is: is Mr. Nogood's occupancy without Dave's consent? In our example, the answer is obvious: Dave gave no consent to Mr. Nogood. But what if Dave knew Mr. Nogood and was simply giving him a place to stay? If this were true, Mr. Nogood would not prevail on this most basic element. The possession must be adverse to Dave, hence giving rise to a cause of ejectment. After all, how can you eject someone who has your permission to be on the land? So, Mr. Nogood prevails on the adverse element.
In summary, Mr. Nogood has met the statutory 15 year time period and has satisfied the 3 elements of adverse possession. Now what? Well, nobody in their right mind would accept a deed from Mr. Nogood to the Alanson property. A search of the Emmet County Register of Deeds office would disclose Dave as the owner. So what would Mr. Nogood do? He would prudently file to 'quiet title' in himself. The court would then set out to favor or disfavor Mr. Nogood's position based on the doctrine of Adverse Possession. Once adverse possession is proven, Mr. Nogood will be declared the true owner and he will be free to convey the land free from any legal claim posited by Dave.
Conclusion: Adverse possession is devastating to an unsuspecting land owner. The use of this doctrine should strike the reader as idiotic. After all, in today's world, why would the courts allow such an unjust result? Dave did nothing wrong! Well, the simplest answer is this: adverse possession allows for cleaner land records. It allows a court to perfect a chain of title. Without this doctrine, disputes over title could theoretically go on forever. The numerous statutes of limitation take their roots from this reasoning. In effect, life is just too short. A statute of limitation allows for a particular terminus or ending. It gives individuals peace of mind and an absolute conclusion to a particular legal matter. The adverse possession doctrine inspires a land owner not to sleep on their rights. Furthermore, if someone has neglected property for 15 or more years, and the adverse possessor is making use of the land, isn't it more functional and practical to pass title to the adverse possessor? I think so. And remember, although adverse possession is harsh, 15 years is an awfully long time.
More soon - dave
Thursday, August 7, 2008
Through the Eyes of a 12 Year Old
Terrified!! It is February of 1981. I am 12 years old, sitting in the backseat of a car bound for Toledo, Ohio, the site of my first weightlifting competition. I pass the time with useless, nervous chatter.
As we pull up to the meet site, my stomach hits the ground. I can't actually hear it hit because that particular sound is masked by the pulsating in my ears. Holy shit, I'm actually going to do this! My experience as an Olympic weightlifter?: less than one month.
As I and my teammates enter the gymnasium, I register the smell of rubber and freshly cut pine. The rubber smell emanates from the weights, the wood smell from the warm-up and competition platforms. I can now feel the sweat trickling down my armpits; a mouth so dry as to repel even the most robust desert animal. I experience that weird sensation of my heart rate increasing while my blood pressure drops. This is no joke; it is full panic time. My anxiety level warrants a five alarm fire. I continue to combat this with useless, nervous chatter. I seem fixated on the number of people present. I wonder how many people will be sitting in these ringside bleachers to witness my destruction.
My coach takes me to the locker room, tells me to strip down to my underwear and get ready for weigh-ins. I will compete in the 81 pound weight division. With a current bodyweight of 66 pounds and height of approximately 4' 8", this will not pose a problem. So, I strip down to my sagging 'fruit of the looms' and jump in the single file line that has formed in front of the doctors' scale. I am embarrassed on many levels. I have no body hair, which makes me feel that I am not like other kids my age. I am also extremely small, which makes me feel that I am not like other kids my age. My feet leave footprints on the scale when I get off; much like sweaty palms, the product of stress.
The attire: I am so new to the sport that I have no equipment. I am wearing a long sleeve athletic shirt; gym shorts; socks (pulled up to the knees 70's style), and blue Nike running shoes. Everyone else is decked out in weightlifting singlets, belts, and weightlifting shoes. I could not be more insecure if you asked me to ice dance while holding a small elephant.
The warm-up room is unmistakable. The smell of heat liniment and baby powder mix with all the other smells to further add to my anxiety. Warm-ups don't take me long, as my first attempt is with an empty bar (20kg/44 pounds). FYI, an announcer at a weightlifting competition will announce three names at once. They announce who the current lifter is, who the lifter 'on deck' is, and who the lifter 'in the hole' is. When they announce "Dave Phillips in the hole," I fear I will pass out. My coach sits me in a chair and begins to sprinkle baby powder on my thighs. The powder enables the bar to easily slide across the thighs, without tearing up the skin.
Finally, my name is called! I walk out in front of the small crowd, visibly shaking. I dip my hands in the chalk box to ensure a slip free grip. There is a timer next to the platform that allots 2:00 minutes to begin the lift. I stare at this multiple times as I approach the platform. I have no pre-lift routine, so I just walk out and grab the bar. But wait, there's a problem! I can't remember where to place my hands on the bar. I look over at my coach and he reminds me to put my little finger "just inside the dashed line." I do this and complete the lift. I have absolutely no memory of that lift or the remainder of the competition. All my future competitions were the same way: I entered a zone where I could not remember the competition, the crowd, or any noise. To reflect on the competition, I had to use videotape and spectator descriptions. It was like being in a total white-out.
I took a medal that day, more from the lack of people in my weight division than from talent. My relief at the end of the day was tremendous. I felt like a 12 year old that just won the Olympics. Monday morning was going to bring some great stories at Churchill Junior High.
Present Day: Not one day goes by that I don't recall, in one form or another, the events of that day. Upon reflection, it wasn't receiving the medal that strikes me most, it is rather something much more formative. It was the breaking through of that concrete wall of real anxiety and real fear that was the greatest lesson. I now realize that my task that day was not solely to earn a medal, it was much more basic than that. My task, through the eyes of a 12 year old, was to stay on my own two feet and physically complete the competition.
My success as an Olympic weightlifter revealed itself to be both a blessing and a curse. It has been my observation that former athletes are loaded with a central core of self assurance. I personally believe that I can face the tallest tree, chop it down piece by piece, and eventually stand on top of the rubble. But unlike athletic events, life isn't so black and white. You can be the best at something, expend your greatest effort and commitment toward something, and ultimately be left in possession of a handful of sand in return. The black and white successes of athletics and the pitfalls of life are simply irreconcilable. The process of strict athletic training yields a consistent and rewarding product. Life frequently, but not always, yields no product whatsoever. This is what I call the negative equity scenario.
To me, what lies at the heart of athletic success is not its carryover into life's rewards, rather it is the belief in your own self that wins the day. Without this belief, adversity is likely to conquer. Many people I know, including myself, are facing some very difficult times. We aren't receiving the rewards we expect our efforts to bring. This is nothing new; there are surely thousands of articles from people writing of success and failure or the combination thereof. But when I feel that I am particularly anxious or afraid, which I am, I realize that I am no more anxious or afraid than I was that February day 28 years ago. All of you reading this have experienced success at some point in your lives. It wasn't necessarily athletic success and it may not have been great success, but it was success nonetheless. Reflect on those times and bolster your own self assurance. Stay on a positive track and for those facing hard times, these times will pass.
dave
As we pull up to the meet site, my stomach hits the ground. I can't actually hear it hit because that particular sound is masked by the pulsating in my ears. Holy shit, I'm actually going to do this! My experience as an Olympic weightlifter?: less than one month.
As I and my teammates enter the gymnasium, I register the smell of rubber and freshly cut pine. The rubber smell emanates from the weights, the wood smell from the warm-up and competition platforms. I can now feel the sweat trickling down my armpits; a mouth so dry as to repel even the most robust desert animal. I experience that weird sensation of my heart rate increasing while my blood pressure drops. This is no joke; it is full panic time. My anxiety level warrants a five alarm fire. I continue to combat this with useless, nervous chatter. I seem fixated on the number of people present. I wonder how many people will be sitting in these ringside bleachers to witness my destruction.
My coach takes me to the locker room, tells me to strip down to my underwear and get ready for weigh-ins. I will compete in the 81 pound weight division. With a current bodyweight of 66 pounds and height of approximately 4' 8", this will not pose a problem. So, I strip down to my sagging 'fruit of the looms' and jump in the single file line that has formed in front of the doctors' scale. I am embarrassed on many levels. I have no body hair, which makes me feel that I am not like other kids my age. I am also extremely small, which makes me feel that I am not like other kids my age. My feet leave footprints on the scale when I get off; much like sweaty palms, the product of stress.
The attire: I am so new to the sport that I have no equipment. I am wearing a long sleeve athletic shirt; gym shorts; socks (pulled up to the knees 70's style), and blue Nike running shoes. Everyone else is decked out in weightlifting singlets, belts, and weightlifting shoes. I could not be more insecure if you asked me to ice dance while holding a small elephant.
The warm-up room is unmistakable. The smell of heat liniment and baby powder mix with all the other smells to further add to my anxiety. Warm-ups don't take me long, as my first attempt is with an empty bar (20kg/44 pounds). FYI, an announcer at a weightlifting competition will announce three names at once. They announce who the current lifter is, who the lifter 'on deck' is, and who the lifter 'in the hole' is. When they announce "Dave Phillips in the hole," I fear I will pass out. My coach sits me in a chair and begins to sprinkle baby powder on my thighs. The powder enables the bar to easily slide across the thighs, without tearing up the skin.
Finally, my name is called! I walk out in front of the small crowd, visibly shaking. I dip my hands in the chalk box to ensure a slip free grip. There is a timer next to the platform that allots 2:00 minutes to begin the lift. I stare at this multiple times as I approach the platform. I have no pre-lift routine, so I just walk out and grab the bar. But wait, there's a problem! I can't remember where to place my hands on the bar. I look over at my coach and he reminds me to put my little finger "just inside the dashed line." I do this and complete the lift. I have absolutely no memory of that lift or the remainder of the competition. All my future competitions were the same way: I entered a zone where I could not remember the competition, the crowd, or any noise. To reflect on the competition, I had to use videotape and spectator descriptions. It was like being in a total white-out.
I took a medal that day, more from the lack of people in my weight division than from talent. My relief at the end of the day was tremendous. I felt like a 12 year old that just won the Olympics. Monday morning was going to bring some great stories at Churchill Junior High.
Present Day: Not one day goes by that I don't recall, in one form or another, the events of that day. Upon reflection, it wasn't receiving the medal that strikes me most, it is rather something much more formative. It was the breaking through of that concrete wall of real anxiety and real fear that was the greatest lesson. I now realize that my task that day was not solely to earn a medal, it was much more basic than that. My task, through the eyes of a 12 year old, was to stay on my own two feet and physically complete the competition.
My success as an Olympic weightlifter revealed itself to be both a blessing and a curse. It has been my observation that former athletes are loaded with a central core of self assurance. I personally believe that I can face the tallest tree, chop it down piece by piece, and eventually stand on top of the rubble. But unlike athletic events, life isn't so black and white. You can be the best at something, expend your greatest effort and commitment toward something, and ultimately be left in possession of a handful of sand in return. The black and white successes of athletics and the pitfalls of life are simply irreconcilable. The process of strict athletic training yields a consistent and rewarding product. Life frequently, but not always, yields no product whatsoever. This is what I call the negative equity scenario.
To me, what lies at the heart of athletic success is not its carryover into life's rewards, rather it is the belief in your own self that wins the day. Without this belief, adversity is likely to conquer. Many people I know, including myself, are facing some very difficult times. We aren't receiving the rewards we expect our efforts to bring. This is nothing new; there are surely thousands of articles from people writing of success and failure or the combination thereof. But when I feel that I am particularly anxious or afraid, which I am, I realize that I am no more anxious or afraid than I was that February day 28 years ago. All of you reading this have experienced success at some point in your lives. It wasn't necessarily athletic success and it may not have been great success, but it was success nonetheless. Reflect on those times and bolster your own self assurance. Stay on a positive track and for those facing hard times, these times will pass.
dave
Wednesday, August 6, 2008
Estoppel By Deed
Estoppel comes from old french and it simply means to preclude or stop.
In this article I will discuss the 'estoppel by deed'; sometimes referred to as 'after acquired title'.
The doctrine is fairly simple to understand via the use of the following fact scenario:
1) On May 29, 1988, Elton John, the purported owner of Rocket Man Acres, conveys by way of warranty deed to Dave Phillips. Pay attention to the use of the warranty deed.
2) At the time of the above conveyance, Elton was not the owner of Rocket Man Acres.
3) On July 4, 1988, Nikita, a lovely russian female soldier, conveys by way of warranty deed to Elton.
On July 4, 1988, who owns Rocket Man Acres?
Answer: Dave. How?
Reasoning: Although Elton did not own Rocket Man Acres on May 29, he will be estopped from denying his transfer of title to Dave. Elton's use of a warranty deed is the key factor. Although Elton did not technically own the land on the date of his conveyance to Dave, the warranty deed carries with it 3 present and 3 future covenants of title (covered in a prior article). At the heart of estoppel by deed is the fact that the grantor, Elton, has warranted to Dave that he is the owner of the land in fee simple and that he has the right to convey his fee simple interest to Dave. Hence, when Elton received his deed on July 4, it would by considered a formality and the chain of title would continue on with Dave as the owner. This is fair and should strike all readers as very common sensical.
Now, in most states, estoppel by deed will be found either by the use of a warranty deed or by the use of a quit claim deed. Of great importance, the quit claim deed carries with it no warranties, it simply purports to convey what the grantor owns. This is where Michigan case law gets a little funny.
Michigan courts do draw the distinction between the use of a warranty deed or a quit claim deed when the question of estoppel by deed arises. Using the above example, if Rocket Man Acres were located in Michigan, namely beautiful northern Michigan, and Elton had conveyed to Dave via quit claim deed, no title would have transferred to Dave and estoppel by deed would not be found. Why?
Reasoning: The quit claim deed, executed on May 29, will only convey what Elton actually owned, which was nothing. Nothing from nothing equals nothing (sounds like a song title). Now, when Elton receives his deed on July 4, he will be the outright owner, Dave will have no legal interest. When Dave confronted Elton with this, Elton simply said "I guess that's why they call it the blues."
I know, a regular comedian. Anyway, I have been painting all day and am very sore, so I will conclude. Estoppel by deed is a very streamlined and pragmatic doctrine that sounds of good common sense. Whether or not I agree with current Michigan law is not a topic for this article. Estoppel by deed is a technical issue, albeit a very straight forward issue. But like my contracts teacher liked to say, "It's only a problem when it becomes a problem." Cases are brought because there exists competing interests. The use of a warranty deed is always golden to the grantee.
More soon - dave
In this article I will discuss the 'estoppel by deed'; sometimes referred to as 'after acquired title'.
The doctrine is fairly simple to understand via the use of the following fact scenario:
1) On May 29, 1988, Elton John, the purported owner of Rocket Man Acres, conveys by way of warranty deed to Dave Phillips. Pay attention to the use of the warranty deed.
2) At the time of the above conveyance, Elton was not the owner of Rocket Man Acres.
3) On July 4, 1988, Nikita, a lovely russian female soldier, conveys by way of warranty deed to Elton.
On July 4, 1988, who owns Rocket Man Acres?
Answer: Dave. How?
Reasoning: Although Elton did not own Rocket Man Acres on May 29, he will be estopped from denying his transfer of title to Dave. Elton's use of a warranty deed is the key factor. Although Elton did not technically own the land on the date of his conveyance to Dave, the warranty deed carries with it 3 present and 3 future covenants of title (covered in a prior article). At the heart of estoppel by deed is the fact that the grantor, Elton, has warranted to Dave that he is the owner of the land in fee simple and that he has the right to convey his fee simple interest to Dave. Hence, when Elton received his deed on July 4, it would by considered a formality and the chain of title would continue on with Dave as the owner. This is fair and should strike all readers as very common sensical.
Now, in most states, estoppel by deed will be found either by the use of a warranty deed or by the use of a quit claim deed. Of great importance, the quit claim deed carries with it no warranties, it simply purports to convey what the grantor owns. This is where Michigan case law gets a little funny.
Michigan courts do draw the distinction between the use of a warranty deed or a quit claim deed when the question of estoppel by deed arises. Using the above example, if Rocket Man Acres were located in Michigan, namely beautiful northern Michigan, and Elton had conveyed to Dave via quit claim deed, no title would have transferred to Dave and estoppel by deed would not be found. Why?
Reasoning: The quit claim deed, executed on May 29, will only convey what Elton actually owned, which was nothing. Nothing from nothing equals nothing (sounds like a song title). Now, when Elton receives his deed on July 4, he will be the outright owner, Dave will have no legal interest. When Dave confronted Elton with this, Elton simply said "I guess that's why they call it the blues."
I know, a regular comedian. Anyway, I have been painting all day and am very sore, so I will conclude. Estoppel by deed is a very streamlined and pragmatic doctrine that sounds of good common sense. Whether or not I agree with current Michigan law is not a topic for this article. Estoppel by deed is a technical issue, albeit a very straight forward issue. But like my contracts teacher liked to say, "It's only a problem when it becomes a problem." Cases are brought because there exists competing interests. The use of a warranty deed is always golden to the grantee.
More soon - dave
Monday, August 4, 2008
Michigan's Race-Notice Doctrine
So you have just purchased your new home and are in receipt of the original deed. What do you do next? Answer: You immediately march down to the Register of Deeds (ROD) office of the county where your land sits and record your deed. Prompt recording will evidence your legal rights to your new home. Why is this so important? After all, you have paid a lot of money for your new home and the seller appeared to be a really nice guy.
First off, it is possible that you may never have a dispute of your ownership, even if you never record your deed. In the past, many people did not record their deed. This was referred to as 'desk drawer title' because the unrecorded deed was oftentimes found in the deceased homeowner's desk. On the contrary, a problem arises when a third party initiates a legal claim against your land. If you do not have your deed 'of record' you may be in for a shocking surprise. The following will depict the power of the land recording system.
Like it or not, the courts of Michigan will look to the public record when a dispute over title exists. Such public record is found at the ROD office of the county in which the land is located. The court, in making its determination, will make use of the Michigan recording acts for its resolution.
Michigan is a race-notice jurisdiction. About 1/2 of the states are race-notice jurisdictions. The majority of the remaining states are notice jurisdictions, while only a handful are race jurisdictions. To understand how the race-notice principle works, I will offer a set of facts:
(1) On February 1, 2008, Dave Phillips purchases a beautiful new home in Novi for $300,000.00. He resides in Oklahoma and plans to move into the Novi home by the summer of 2009. In his infinite wisdom, Dave decides not to purchase title insurance. His reasoning? He used to party hardy with the seller back at Indiana University. There is no way the seller would deceive him.
(2) Dave decides to be responsible, so he places his unrecorded deed in his safety deposit box located at his bank in Norman, Oklahoma. No way anyone can tamper with it in there. Go Sooners!!
(3) It is now August 1 of 2008 and the deed remains unrecorded and also remains in his safety deposit box.
(4) Enter the Joker. On April 1, 2008, Dave's party buddy decides that he would rather sell the Novi home to Mr. Opportunist.
(5) Mr. Opportunist has no idea that Dave exists, nor any idea that Dave has already received a deed to this same property. He also pays $300,000.00 for the Novi residence.
(6) Mr. Opportunist immediately records his deed with the Oakland County ROD.
(7) At Christmas time, 2008, Dave decides to pay a visit to his new home, just to move a few things in. He is shocked to see Mr. Opportunist living in his home. He is further shocked and dismayed that Mr. Opportunist is wearing a Michigan Wolverine sweatshirt. Go Sooners!!
(8) Dave, being rather upset, takes his deed to the Oakland County circuit court and demands that Mr. Opportunist be removed!
(9) Result: Dave loses; Mr. Opportunist wins. How can this be??
The result is found based on the application of the race-notice doctrine. When two or more deeds exist with competing interests, we have a problem. It is considered a race to see who records first. This is the simple meaning of the race element of the doctrine. Whoever records first will prevail under the race element. But there is an additional element; that being the notice element. To fully understand the notice principle, the reader must understand the meaning of a bona fide purchaser (BFP). To qualify as a BFP, the grantee must satisfy two elements: (1) the grantee must pay value for the land, and (2) the grantee must have no actual or recorded notice of intervening rights adverse to their own.
The value paid for the land does not have to be market value. The court will determine if the grantee has furnished adequate consideration. Actual notice is just as it sounds, so keep this simple. Example: the grantee has actual notice if the seller verbally discloses the adverse interest. Record notice is found via a search of the land records. The grantee is charged with such record notice even if they do not perform an adequate search.
Capsule Summary: So, there exists three (3) elements that a party must satisfy in order to be protected under the race-notice doctrine. When applying the race-notice doctrine, the court may use the following checklist:
(1) Which party recorded first?
(2) Does the party qualify as a BFP? The BFP consists of two elements: (a) did the grantee pay value?, and (b) did the grantee lack actual or record notice?
This is straight forward. Either the party satisfies all three elements, or they do not.
Using my earlier example, Mr. Opportunist satisfies all three elements. He certainly recorded his deed first, so he prevails on the race element. Additionally, Mr. Opportunist had no idea of the existence of Dave's interest in the land. He was not told of Dave's interest and there was no record interest created in Dave. He also paid value for the land. So he qualifies as a BFP.
Dave will be able to sue his IU buddy, but the race-notice doctrine will enable Mr. Opportunist to go forward, free of any claims posited by Dave.
So, going back to our original set of facts, you can see how easily Dave's problems could have been avoided if only he had promptly recorded his deed. If he had done so, Mr. Opportunist would have lost the battle based on Dave's record interest.
Disputes oftentimes arise because necessary documents were not recorded or, worse yet, the documents were recorded, but they were not filed properly and were considered by the court to be recorded 'outside' the chain of title. Either way, the race-notice doctrine allows the court to establish who has the superior position.
It is well worth the time for an attorney or homeowner to search the land records shortly after depositing a deed for recording. Why? This concerns clerical mistakes. When someone with a competing interest runs a search of the land records, they will usually find your interest of record and all will be fine. However, if your deed was erroneously filed and a normal search of the ROD records fails to disclose your deed, it may be determined that your deed was recorded outside the chain of title. As a result, the party would not be charged with record notice. If you do discover that your deed was misfiled, you can have the ROD office correct the mistake. Forgive me, I am just cleaning all the corners.
Writing more soon - dave
First off, it is possible that you may never have a dispute of your ownership, even if you never record your deed. In the past, many people did not record their deed. This was referred to as 'desk drawer title' because the unrecorded deed was oftentimes found in the deceased homeowner's desk. On the contrary, a problem arises when a third party initiates a legal claim against your land. If you do not have your deed 'of record' you may be in for a shocking surprise. The following will depict the power of the land recording system.
Like it or not, the courts of Michigan will look to the public record when a dispute over title exists. Such public record is found at the ROD office of the county in which the land is located. The court, in making its determination, will make use of the Michigan recording acts for its resolution.
Michigan is a race-notice jurisdiction. About 1/2 of the states are race-notice jurisdictions. The majority of the remaining states are notice jurisdictions, while only a handful are race jurisdictions. To understand how the race-notice principle works, I will offer a set of facts:
(1) On February 1, 2008, Dave Phillips purchases a beautiful new home in Novi for $300,000.00. He resides in Oklahoma and plans to move into the Novi home by the summer of 2009. In his infinite wisdom, Dave decides not to purchase title insurance. His reasoning? He used to party hardy with the seller back at Indiana University. There is no way the seller would deceive him.
(2) Dave decides to be responsible, so he places his unrecorded deed in his safety deposit box located at his bank in Norman, Oklahoma. No way anyone can tamper with it in there. Go Sooners!!
(3) It is now August 1 of 2008 and the deed remains unrecorded and also remains in his safety deposit box.
(4) Enter the Joker. On April 1, 2008, Dave's party buddy decides that he would rather sell the Novi home to Mr. Opportunist.
(5) Mr. Opportunist has no idea that Dave exists, nor any idea that Dave has already received a deed to this same property. He also pays $300,000.00 for the Novi residence.
(6) Mr. Opportunist immediately records his deed with the Oakland County ROD.
(7) At Christmas time, 2008, Dave decides to pay a visit to his new home, just to move a few things in. He is shocked to see Mr. Opportunist living in his home. He is further shocked and dismayed that Mr. Opportunist is wearing a Michigan Wolverine sweatshirt. Go Sooners!!
(8) Dave, being rather upset, takes his deed to the Oakland County circuit court and demands that Mr. Opportunist be removed!
(9) Result: Dave loses; Mr. Opportunist wins. How can this be??
The result is found based on the application of the race-notice doctrine. When two or more deeds exist with competing interests, we have a problem. It is considered a race to see who records first. This is the simple meaning of the race element of the doctrine. Whoever records first will prevail under the race element. But there is an additional element; that being the notice element. To fully understand the notice principle, the reader must understand the meaning of a bona fide purchaser (BFP). To qualify as a BFP, the grantee must satisfy two elements: (1) the grantee must pay value for the land, and (2) the grantee must have no actual or recorded notice of intervening rights adverse to their own.
The value paid for the land does not have to be market value. The court will determine if the grantee has furnished adequate consideration. Actual notice is just as it sounds, so keep this simple. Example: the grantee has actual notice if the seller verbally discloses the adverse interest. Record notice is found via a search of the land records. The grantee is charged with such record notice even if they do not perform an adequate search.
Capsule Summary: So, there exists three (3) elements that a party must satisfy in order to be protected under the race-notice doctrine. When applying the race-notice doctrine, the court may use the following checklist:
(1) Which party recorded first?
(2) Does the party qualify as a BFP? The BFP consists of two elements: (a) did the grantee pay value?, and (b) did the grantee lack actual or record notice?
This is straight forward. Either the party satisfies all three elements, or they do not.
Using my earlier example, Mr. Opportunist satisfies all three elements. He certainly recorded his deed first, so he prevails on the race element. Additionally, Mr. Opportunist had no idea of the existence of Dave's interest in the land. He was not told of Dave's interest and there was no record interest created in Dave. He also paid value for the land. So he qualifies as a BFP.
Dave will be able to sue his IU buddy, but the race-notice doctrine will enable Mr. Opportunist to go forward, free of any claims posited by Dave.
So, going back to our original set of facts, you can see how easily Dave's problems could have been avoided if only he had promptly recorded his deed. If he had done so, Mr. Opportunist would have lost the battle based on Dave's record interest.
Disputes oftentimes arise because necessary documents were not recorded or, worse yet, the documents were recorded, but they were not filed properly and were considered by the court to be recorded 'outside' the chain of title. Either way, the race-notice doctrine allows the court to establish who has the superior position.
It is well worth the time for an attorney or homeowner to search the land records shortly after depositing a deed for recording. Why? This concerns clerical mistakes. When someone with a competing interest runs a search of the land records, they will usually find your interest of record and all will be fine. However, if your deed was erroneously filed and a normal search of the ROD records fails to disclose your deed, it may be determined that your deed was recorded outside the chain of title. As a result, the party would not be charged with record notice. If you do discover that your deed was misfiled, you can have the ROD office correct the mistake. Forgive me, I am just cleaning all the corners.
Writing more soon - dave
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