This Land Is Your Land - I Better Keep Off

by Varnum LLP
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Contrary to Woody Guthrie's catchy tune, there are many good reasons to keep your property "private" and free from uninvited guests: the potential for property damage, theft, and liability for injuries to name a few. The appearance of vacancy and the lack of watchful eyes only increase the likelihood of such dangers. Thus, cottages and other seasonal homes are especially vulnerable as owners are away for the majority of the year.

There are two related legal remedies—trespass and nuisance—that serve to exclude unwanted intruders and remedy other such annoyances. Speaking in generalities, a property owner has a legal claim against a trespasser for simply being what he or she is: an unwanted intruder!

Nuisance, on the other hand, is slightly more nuanced and involves interference with the owner's "reasonable use and enjoyment of his or her property." A person need not be a physical trespasser per se to be liable for nuisance, e.g., harboring bees on one's property may become a nuisance to one's neighbors. See People v McGregor, 65 Mich App 747; 238 NW2d 183 (1975).

Common Problems

Trespass and nuisance problems come in nearly every shape and size, and there is a myriad of statutes and common law rulings related to both. Below are a few common problems with special relevance to cottages and other seasonal retreats:

Recreational Activities
Hunting and fishing are a common source of trespass claims. The latter is especially problematic for cottage owners as most are built on the water. Whether it be lake, river, stream, or pond, it is unlawful for an uninvited individual to travel through your property to access a body of water—regardless of whether it is public or private.

Dogs (and other domestic critters)
Dogs can be man's best friend, or his worst nightmare, depending on the circumstances. Unwanted dogs, whether they be pets of neighbors or strays, can cause property damage through digging, chewing, and other biological functions. Further, they can be dangerous, both to you and your neighbors.

Michigan has a statute dedicated to "Dog Law," which seeks to remedy the problems caused by feral dogs. 1919 PA 339. An unlicensed dog is automatically considered a public nuisance. MCL § 287.277. Further, a licensed dog that "has destroyed property or habitually causes damage by trespassing on the property of a person," is also in violation of the law. MCL 287.286a. Both are grounds for removal or termination of the dog and, if applicable, a potential claim against its owner.

ATVs
All-terrain vehicles, such as four-wheelers and dirt bikes, can cause property damage and noise pollution. ATVs are much less common in highly settled areas. However, if the area surrounding your cottage or property is sparsely populated, these vehicles are more prevalent and can become quite troublesome.

The Natural Resources and Environmental Protection Act governs the use and operation of ATVs in Michigan. MCL § 324.81133. It expressly forbids the use of an ATV on property without the consent of the property owner and makes the operator liable for any damage caused.

Stay tuned next month as we discuss preventative measures to keep your property intruder free.

This post was authored by John Sturgis, a summer 2013 intern

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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