The Law

Good Curbs DON’T Make Good Neighbors by Ron Davis The owners of a Michigan commercial property have avenged the unwanted intrusion on land that they have held title to since 1981. The property is located in Detroit, and the owners obtained the site for the operation of a supermarket. The seller was the Great Atlantic & Pacific Tea Company (A & P), a supermarket chain that had divided its property into separate segments for ease of sale. The owners continued to use the facilities there for a supermarket, which operated for several years. But eventually they decided to lease the property to the state of Michigan for office use by its Department of Human Services. Meanwhile, another segment of the A & P property was acquired by a developer who had plans to construct an auto-parts store there. But once that construction actually began, the developer encountered a problem. Plans called for building a much-needed curbing. But that curbing would encroach on the neighbors’ right-of-way. Efforts began to get the neighbors’ consent to allow the encroachment—though without initial success. Nevertheless, the developer, to appease the neighbors’ concerns, provided them with excerpts from the construction plans (though not the full site and architectural plans). Then, despite the lack of needed consent regarding the controversial curbing, the developer continued construction activities. Soon, the neighbors notified the developer that the project violated the deed restrictions. Despite that notice, however, the developer completed construction. And eventually, the auto-parts store was readied to open for business. In response, the neighbors sued the developer, claiming breach of a deed restriction that prohibited any interference with the free flow of traffic throughout the shopping center parking area. The neighbors also pointed out that any improvement to the former A & P property requires their approval. The developer argued, however, that the language of the restriction presumes that there has been no prior construction on the site. In fact, the developer added, a commercial bank had operated on the property. A Michigan court ruled that the neighbors could enforce the restriction requiring free traffic flow between the parking lots on the adjoining properties. The court therefore added that all improvements on the property in violation of the deed restrictions “be demolished and removed.” On appeal of that ruling, the Court of Appeals of Michigan stated, “[The developer] proceeded with its plans knowing that [its neighbors] objected to the development and without providing full architectural and site plans for [the neighbors’] approval. Under these circumstances, we are not left with the definite and firm conviction that the lower court made a mistake.” (Asker v. WXZ Retail Group, 2013 WL 276055 [Mich.App.]) Decision: February 2013 Published: March 2013