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REAL PROPERTY TAX APPEAL DEADLINES ARE JUST AROUND THE CORNER
Remember that real property tax appeals to the Tax Tribunal must be filed by May 31 for appeals involving commercial, industrial or developmental real property. A protest of the assessment for these classifications of property to the local Board of Review earlier this year was optional so these appeals can be filed even if the matter was not taken to the Board of Review. Our firm handles many of these appeals on a contingency fee basis. The number of appeals keeps increasing as property owners are trying to get their taxable values in line with market conditions. Thus, we will not accept new appeals for filing this year after Friday May 22, 2009 to ensure enough time for us to meet the filing deadline. Thanks.
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Michigan Court of Appeals Affirms Victory for Client in Zoning Dispute.
The Court of Appeals affirmed a dismissal of claims against our client represented by Pat Gallagher. Our client is the owner of a nightclub in Lansing who was sued by the owner of an adjacent building containing residential and commercial units. The theory was that noise levels exceeding local ordinance constitutes a nuisance, and interferes with quiet enjoyment of property. The trial court ruled in our client's favor and denied a motion to abate nuisance and granted summary disposition in our client's favor finding there were no violations of Lansing City noise ordinances. The trial court stated that plaintiff's claims of nuisance are based upon a violation of such ordinances and that, failing to establish a violation, plaintiff's claims fail as a matter of law. The Court of Appeals affirmed this result in the published opinion Capitol Properties Group, LLC v. 1247 Center Street, LLC--- N.W.2d ----, 2009 WL 1034268 Mich.App.,2009 which is now controlling that may be relied by other judges and attorneys.
$6,000,000 Lawsuit Dismissed.
Peter Brown obtained a dismissal of a $6,000,000 lawsuit brought against our client and its loan officer who originated a loan for a borrower. The borrower alleged that his cancer diagnosis was a result of exposure to elevated levels of arsenic in a well on the property that was purchased with the loan proceeds. The borrower alleged that our client had a duty to the borrower to confirm the well on the property had been tested for arsenic. The Court found that our clients, as loan originators, had no duty to inspect the well water and dismissed the case. The borrower was represented by a noted plaintiff's attorneys at the Fieger Law Firm and a Lansing co-counsel.
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SUPER LAWYERS AND RISING STARS AT THE GALLAGHER LAW FIRM
Byron "Pat" Gallagher of the Gallagher Law Firm with offices in Lansing and Detroit has been named by Michigan Super Lawyers magazine as one of the top attorneys in Michigan for Real Estate and Business Law. Only five percent of the lawyers in the state are named by Super Lawyers. Each year Super Lawyers, undertakes a rigorous multi-phase selection process that includes a statewide survey of lawyers, independent evaluation of candidates by Law & Politics' attorney-led research staff, a peer review of candidates by practice area, and a good-standing and disciplinary check.
Jennifer Endl civil litigation and bankruptcy attorney, and Craig Gerard estate planning and trust administration attorney, both with the Gallagher Law Firm with offices in Lansing and Detroit have been named by Michigan Super Lawyers magazine as Rising Stars after a selection process under which lawyers are asked to nominate the best attorneys who are 40 or under, or who have been practicing for 10 years or less. They are instructed to nominate lawyers they have personally observed in action - whether as opposing counsel or co-counsel, or through other firsthand courtroom observation.In addition to the general survey, the attorney-led research team reviews the credentials of potential candidates and assigns points based on a set of defined evaluation criteria. The research staff also confirms that nominees are properly licensed, in good standing with the state licensing agency, and, when possible, that they have no history of disciplinary action that would warrant removal from the list. The point totals from the general survey and research process are then added to arrive at a final tally. The lawyers are ranked by point totals and those with the highest point totals are named to the Rising Stars list. No more than 2.5 percent of the lawyers in the state are named to the list.
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What is Case Evaluation?
Case Evaluation is a pre-trial process in which a case is reviewed by a panel of three experienced attorneys to help the parties settle a dispute. The panel issues an Award specifying a dollar amount, which they believe neither party can afford to reject in view of the sanction provision set forth in the Michigan Court Rules. The Evaluators attempt to "bridge the gap" between what the Plaintiff is willing to accept and what the Defendant is willing to pay to settle the case.
If all parties accept the Evaluation, a judgment will be entered in the amount of the Evaluation. The entry of a judgment pursuant to acceptance of the Evaluation is a consent judgment from which there is no appeal. Each party must file a written acceptance or rejection of the panel's Evaluation with the clerk within 28 days after service of the panel's Evaluation. The judgment disposes of all claims in the action and includes all fees, costs, and interest to the date of judgment.
What is the force behind this process?
The force behind the Evaluation process is the imposition of sanctions against a party that refuses to accept a reasonable Evaluation. The reasonableness of the Evaluation is measured by the verdict reached in the case. The party rejecting the Evaluation must pay the opposing party's actual costs unless the verdict is more favorable to the rejecting party than the Evaluation. A verdict is considered more favorable to the Defendant if it is more than 10 percent (10%) below the Evaluation and more favorable to the Plaintiff if it is more than 10 percent (10%) above the Evaluation. A verdict includes a jury verdict, a judgment by the court after a non-jury trial, or a judgment entered as a result of a ruling on a motion filed after Evaluation.
For Example, if the Case Evaluation panel awarded $30,000 to XYZ, Inc. against ABC, LLC, then ABC, LLC would need to hold XYZ, Inc. to a Judgment of less than $27,000 (90% of $30,000) to receive its actual costs described above. ABC, LLC would need to receive a Judgment greater than $33,000 (10% greater than $30,000) in order to receive its actual costs described above.
When can costs be recovered?
The prevailing party may recover costs incurred beginning 28 days after issuance of the Evaluation through final disposition of the case. The trial court may award a reasonable attorney fee to the prevailing party.
Case evaluation is a tool we often use to not only settle cases, but also to bridge the gap and get an approximate value of a particular case. |
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Choosing your trustee - A decision of utmost importance!
You've made the decision to establish a trust as part of your estate plan, now it's time to choose the trustee. Clients will often ask for an opinion on who they should consider appointing as trustee. While the facts and circumstances of each case vary, it is paramount to select a trustee that is honest, dependable, and organized. The trustee should have the time and energy to fulfill its duties, and be one who is experienced with financial matters. The trustee should also possess the ability to know when to ask for professional assistance from financial planners, attorneys, and certified public accountants. It is critical for the trustee to have the ability and willingness to interpret and abide by the terms of the trust as closely as possible and to report to the beneficiaries of the trust as required by the terms of the trust agreement.
The following are advantages in selecting an Individual as trustee:
1. May have a better understanding of your values.
2. May understand the particular needs of your family and beneficiaries.
3. May be willing to serve with no or minimal compensation.
4. May be able to make quicker administrative decisions than an institution required to await a committee's or corporate counsel's approval.
The following are advantages in selecting a Corporate or Institutional trustee:
1. May take the burden off the family and removes the potential for conflict that may arise if the trustee is also a beneficiary.
2. Experience and expertise in asset management and estate administration.
3. Have ability to act objectively and equitably in situations involving conflict among beneficiaries.
4. Have systems in place to provide accurate recordkeeping and reporting to beneficiaries.
The issues and complexities of each estate will ultimately determine whether or not one should name in individual or corporate trustee. In making the decision as to your trustee, one should recognize that the actual demands on a trustee may be complex and consuming. If you have any questions whatsoever, in deciding what is best for you and your trust, you need to evaluate that pros and cons of your possible decisions with an experienced estate planning attorney. Please contact Craig Gerard at csg@thegallagherlawfirm.com if you are questioning the past appointment of a trustee or are contemplating whom to name in your new documents. |
Real Estate Legal Descriptions: Know What Property You Are Purchasing
When people purchase personal property, they usually know exactly what they are buying. This is because personal property is tangible and can easily be observed and inspected. As a result, when people buy things like automobiles, clothing, and groceries, they typically know exactly what they are getting because after they purchase it, they are able to physically take the item from the seller.
However, knowing what you are getting in a real property transaction can be a bit more complicated. To transfer ownership of real estate, the seller must deed the property to the buyer, which is typically known as a conveyance. This becomes problematic because when real estate is sold, how do the parties know what property is actually being sold? A purchaser can't walk into a real estate store, pick out a house, pay for it, receive a receipt, and drive away with the property in the trunk of his or her car. Therefore, how do the parties know what property is actually the subject of their transaction?
Generally, there are two recognized ways to describe a particular parcel of real estate: a common description, such as a street address, and what is known as a legal description. The legal description is the most important part of any real estate transaction. As the name indicates, it legally describes the real estate involved. Legal descriptions follow established legal and engineering principles to locate a particular parcel of real estate with certainty.
Legal descriptions are used in a variety of instruments. If the transaction is a sale, the legal description in the deed describes what property is being conveyed. However, the legal description is used to describe property in all kinds of real estate transactions, not simply sales transactions. For example, legal descriptions are used in mortgages, land contracts, claims of lien, easements, title insurance policies, and leases. Failing to understand and verify legal descriptions can be a costly mistake.
Therefore, the following are three things to know regarding real estate legal descriptions before entering into a real estate transaction:
Understand the Legal Description
There are generally four methods to describe real estate: (1) sections and divisions of sections, (2) by metes and bounds, (3) by reference to a platted subdivision, and (4) by reference to a condominium.
Sections and Subsections: With a few exceptions, the state of Michigan is divided into square units consisting of townships, ranges, and sections by federal government surveys from the 1800s.
Metes and Bounds: Metes refer to units of measurement and bounds refer to boundaries that may be either natural or artificial. A metes-and-bounds description begins at a specified point and proceeds for certain specified distances until it returns to the point of the beginning. Directions are given by degrees.
Subdivision Plats: A plat is a scaled diagram of property that is subdivided into lots based on a recorded survey. A platted lot may be described by referencing the lot number in the plat and the recording information of the plat.
Condominiums: A condominium is property that is divided into condominium units with various portions of the development under common ownership. A master deed is recorded with a subdivision plan to establish the condominium and the condominium units. A condominium unit may be legally described by referencing the unit number and the recording information for the condominium master deed.
Don't Make Assumptions
During any real estate transaction, it is important to cross-reference the legal descriptions. Begin with the title commitment and survey and then look at the other documents, such as previous deeds, mortgages, and tax documents. However, don't assume that a legal description in other documents is accurate. Many legal description errors go undetected and, as a result, cause many subsequent conveyances and liens to contain erroneous legal descriptions.
Furthermore, make sure the legal description is complete. For example, in a metes-and-bounds description, ensure that the property lines trace back to the point of beginning so that the legal description closes. Finally, make sure the legal description includes any additions or modifications that are subject to the transaction, such as the inclusions of additional parcels or easements.
Personally Visit the Property
Real estate transactions often involve large sums of money and are the biggest investment most people make during their lifetime. Therefore, make sure you thoroughly research and investigate the real estate prior to entering into the transaction.
Personally visiting the property is the best way to investigate the real estate. Spend some time inspecting the real estate and the surrounding properties. Make sure that the metes-and-bounds described in the legal description fits the property. In addition, talk to the neighbors regarding any prior boundary disputes or irregularities in prior real estate transactions. Often times, conversations with local land owners and township assessors can raise red flags about potential problems with the property's legal descriptions or boundaries.
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We appreciate your business and referrals!
 Byron "Pat" Gallagher, Jr. 2408 Lake Lansing Road
Lansing, Michigan 48912
Direct Dial: 517-853-1515
Toll Free: 888-220-1273
Detroit: 313-963-4600
Fax: 517-853-1501
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