29 Mar: THE AS-IS CLAUSE : THE SELLER DISCLOSURE ACT CHANGES THE GAME

Many House Sellers believe that an “as is” clause will protect them from all legal liability if the Buyers subsequently discovery any undisclosed defects or faults in the purchased House. This belief is not unfounded; the “as is” clause does indeed transfer the risk of loss from a House defect to the Buyer in many cases. The Michigan Seller Disclosure Act (the “Act”) dramatically impacts this calculation. The Act changed the residential house sale rules…

15 Mar: ARBITRATION PROS AND CONS

When contracting parties confront the possibility of a commercial dispute, one of the fundamental questions they face is whether to arbitrate that dispute. This question can be answered by the contract, or the parties can simply choose to arbitrate at any point after the dispute has arisen. There are several frequently cited PROS and CONS to Arbitration versus court-based litigation: PROS 1. Arbitration is less expensive 2. Arbitration is quicker 3. The Arbitrator usually specializes…

13 Mar: The Amended Marketable Title Act: Opportunities for Mischief?

The Michigan legislature amended the Marketable Title Act to clear titles. In the process, they may have created more room for error. At the end of 2018, the Michigan Legislature amended the Marketable Title Act. The intent was to clarify the meaning of the phrase “subject to easements and restrictions of record”, which appears in many title policies. Under the law as revised, that customary phrase will not save a property restriction more than 40…

27 Mar: Unexpected Danger – a Rare Exception To the Open and Obvious Defense

As many Michigan residents are by now aware, Michigan courts have been quite stingy allowing slip and fall cases to proceed to the jury when the property owner can claim that the danger was “open and obvious.” In Michigan, a danger is open and obvious if an average user with ordinary intelligence would be able to discover the danger and the risk presented upon casual inspection. A recent case, Bachrouche v. Halawi, highlights how darkness…

21 Mar: Modifying the “No Oral Modifications” Clause

One of my perennial favorites in contract interpretation law is the doctrine that parties can orally modify a “no oral modifications” clause. That’s right, Michigan courts will not allow contracting parties to irrevocably state in advance that their contract can never be modified except in writing. This seemingly nonsensical legal doctrine actually makes sense upon reflection. Michigan law respects freedom of contract, so if the parties subsequently contract to modify their previous contract, and do…

07 Mar: Contractual Statute of Limitations Waivers Will be Enforced

In a recent decision entitled Sams v Common Ground, a panel of the Michigan Court of Appeals enforced a Michigan employment contract reducing the customary six years statute of limitations to just one year. The employee challenged that reduced time limit as being unconscionable and contrary to the Persons with Disabilities Civil Rights Act. The Court rejected both arguments, citing other cases allowing reduction of the statute of limitations to one year and in some…

03 Mar: Michigan Permits Domestic Asset Protection Trusts

Effective March 8, 2017, Michigan joined an increasing number of states that permit “Domestic Asset Protection Trusts,” aka DAPTs. These instruments enable the Grantors forming the Trusts to protect their property against future claims, as long as they follow the specified guidelines. DAPTs are irrevocable trusts. Unlike most irrevocable trusts, however, the Grantor who sets up the DAPT retains a certain amount of control over the Trust, and can even receive income and annuity payments…

28 Feb: When a Fully Paid Mortgage is Still on Your House Title

This is an all-too frequent occurrence. You took out a home equity loan years ago and paid it off. You are now selling your house but the mortgage company never removed the mortgage lien. The loans had been transferred by the mortgagee to another lender, or the records just don’t go back that far. What do you do? By the way, it is often difficult to get paid off first mortgages discharged as well. Here’s…

24 Feb: Buying a House?

There is much to consider when you are buying a house or condominium. It is usually one of the most important transactions of your life, one you will have to live with for several years or more. Even when you have hired the assistance of a realtor, attorneys have an important role to fulfill. We can assist in reading and negotiating the legal terms of the Purchase Agreement. There are legal ramifications to the Seller…

18 Feb: Avoiding Will Contests

Anyone who goes to the trouble of having an attorney draft his or her Will quite naturally wants it to be honored by his or her heirs. In short, no Will contests! A lot of clients ask us how to prevent such mischief. The primary drafting tool is, not surprisingly, a clause prohibiting heirs from contesting any provisions of the Will. This prohibition can also be imposed in Trusts. Such provisions are frequently referred to…