ACTION by party attempting to acquire title by adverse possession or acquiescence. JAMES NEIGHBOR and WENDIE NEIGHBOR are residents of Oakland County, Michigan. Subject matter of litigation is certain real property located at 1234 Elm street, adversarial heights, michigan.
ACTION by party attempting to acquire title by adverse possession or acquiescence. JAMES NEIGHBOR and WENDIE NEIGHBOR are residents of Oakland County, Michigan. Subject matter of litigation is certain real property located at 1234 Elm street, adversarial heights, michigan.
ACTION by party attempting to acquire title by adverse possession or acquiescence. JAMES NEIGHBOR and WENDIE NEIGHBOR are residents of Oakland County, Michigan. Subject matter of litigation is certain real property located at 1234 Elm street, adversarial heights, michigan.
Form A. Verified Complaint with Statement of Title (action by party
attempting to acquire title by adverse possession or acquiescence). Form B. Verified Complaint with Statement of Title (action by party attempting to retain record title). Form C. Lis Pendens Form D. Statement of Title. FORM A [ACTION BY PARTY ATTEMPTING TO ACQUIRE TITLE BY ADVERSE POSSESSION OR ACQUIESCENCE] STATE OF MICHIGAN IN THE CIRCUIT COURT FOR THE COUNTY OF OAKLAND ROBERT HOMEOWNER and EILEEN HOMEOWNER, husband and wife, Plaintiffs, vs. JAMES NEIGHBOR and WENDIE NEIGHBOR, husband and wife, Defendants. _________________________________________________/ BUTZEL LONG By: Patrick A. Karbowski (P40577) Attorneys for Plaintiffs 100 Bloomfield Hills Parkway, Suite 200 Bloomfield Hills, MI 48304 (248) 258-1616 ______________________________________________/ VERIFIED COMPLAINT Jurisdictional Allegations Plaintiffs, Robert Homeowner and Eileen Homeowner, husband and wife (Plaintiffs), by their attorneys, Butzel Long, for their Complaint against Defendants James Neighbor and Wendie Neighbor, husband and wife (Defendants), state as follows: 1. Plaintiffs, Robert Homeowner and Eileen Homeowner, husband and wife, (Plaintiffs) are residents of Oakland County, Michigan. 2. Defendants James Neighbor and Wendie Neighbor, husband and wife ("Defendants") are residents of Oakland County, Michigan. 3. The subject matter of this litigation is certain real property located at 1234 Elm Street, Adversarial Heights, Michigan, which is located in Oakland County, Michigan (the Property or Plaintiffs Property -- See also, Statement of Title, attached), more particularly, described as follows: Lot 123, Adversarial Heights Subdivision, according to the plat thereof as recorded in Liber 16333, Page 34, 34A through 34F of Plats, Oakland County Records. 4. Jurisdiction is proper in this Court pursuant to MCL 600.605 (subject matter jurisdiction), MCL 600.701 (personal jurisdiction) and MCL 600.751 (in rem jurisdiction). General Allegations 5. Plaintiffs reallege the allegations of paragraphs 1 through 4 of this Complaint as if fully repeated in this paragraph 5. 6. On or about October 3, 1987, Plaintiffs purchased the Property in fee simple absolute from Andrew Seller and Judith Seller (Plaintiffs Grantors). 7. Upon information and belief, Plaintiffs Grantors held title to the Property in fee simple absolute for approximately nine and one-half years (April 19, 1978) before conveying the Property to Plaintiffs. 8. Together, Plaintiffs and Plaintiffs Grantors have held title to Plaintiffs Property in fee simple absolute for over fifteen years. 9. Upon information and belief, Defendants own Lot 124 of Adversarial Heights Subdivision as recorded in Liber 16633, Page 34, 34A through 34F of Plats, Oakland County Records (Defendants Property). 10. Lot 124 is contiguous to the northerly boundary of Plaintiffs' Property. 11. Upon information and belief, sometime between August 1 and August 15, 1993, Defendants obtained a survey of Defendants Property which purportedly showed that Defendants Property actually extended several feet into the northerly portion of Plaintiffs Property. The area in dispute includes a triangular area approximately 40 square feet in Plaintiffs sideyard, including Plaintiffs only exterior means of ingress and egress to Plaintiffs backyard and a rectangular area of approximately 125 square feet in Plaintiffs backyard. Plaintiffs backyard is fully enclosed by a cyclone fence and the southern wall of Defendants garage, and has been so enclosed and used exclusively by Plaintiffs and their predecessors in title for at least 21 years. The area in dispute is shown in the diagram attached as Exhibit A. 12. Since purchasing the Property in 1987, Plaintiffs acts of ownership relative to the northerly portion of Plaintiffs Property have included, by way of example and not limitation, building a landscaped English style garden in the backyard, utilizing an existing dog run in the side yard (for storage), and utilizing an existing cyclone fence with a gate which provides the only exterior access to Plaintiffs backyard. See, photographs attached as Exhibits A, B, C and D which also show a yellow rope indicating the approximate point of the boundary as alleged by Defendants. 13. On or about October, 1993 and subsequent to obtaining their survey, Defendants advised Plaintiffs that Defendants disputed Plaintiffs right to use and possess the northerly portion of Plaintiffs Property and further advised Plaintiffs that in the spring of 1994, Defendants would seek to preclude Plaintiffs from using and possessing the northerly portion of the Property by one or more of the following means: a. by placing a six-foot fence directly on the alleged boundary as shown in Defendants survey, thereby eliminating Plaintiffs only exterior access to their backyard and blocking all but approximately two feet of Plaintiffs kitchen window, which is the only window on the northerly side of Plaintiffs house (see, Exhibit B which shows the kitchen window and the existing four foot high fence around the dog run Defendants fence would extend another two feet blocking the window in the photograph); b. by extending the six-foot fence inside Plaintiffs existing cyclone fenced backyard, bisecting the backyard from east to west for the purpose of occupying approximately 125 square feet of Plaintiffs property at the northern boundary, destroying a substantial portion of Plaintiffs perennial garden; c. by pouring concrete over the entire northerly portion of Plaintiffs Property to Plaintiffs backyard covering approximately 40 square feet, for the purpose of creating additional driveway space so that Defendants would have more room for their home business of repairing and refurbishing foreign automobiles; d. by destroying the existing dog run because Defendants fence will bisect the dog run; to install the fence Defendants will have to break up the 3 concrete base of the dog run and remove a substantial portion of the existing fencing around the enclosure, in effect destroying the enclosure and causing Plaintiffs the expense of removing remaining concrete floor and fencing, and e. changing the existing grade of Defendants driveway and, upon information and belief, causing water to run off into Plaintiffs property and negatively impact the foundation of Plaintiffs' house. 14. In early spring 1994 Plaintiffs repeatedly requested a meeting with Defendants to determine if some amicable resolution was possible to the parties' dispute. Defendants were generally unavailable for a meeting until April 10, 1994. 15. The parties did meet on April 10, 1994 and Defendants advised Plaintiffs that within thirty (30) days Defendants would implement their plans as detailed in paragraph 13 above. 16. Upon information and belief, Defendants have or intend to immediately obtain a building permit relative to their plans, and immediately thereafter begin construction on the northerly portion of Plaintiffs Property. On April 11, 1994, Defendants and representatives of a contractor began measuring the northern boundary of Plaintiffs Property, on information and belief, for the erection of a fence. 17. Injuries to Plaintiffs from the above alleged acts and threatened acts of Defendants are irreparable and Plaintiffs are without an adequate remedy at law with respect to such injuries. Count I -Adverse Possession 18. Plaintiffs reallege the allegations of paragraphs 1 through 17 of this Complaint as if fully repeated in this paragraph 18. 19. Upon information and belief, for a continuous period of more than 15 years before bringing this action, Plaintiffs and their predecessors in title have used, occupied and claimed ownership of all or part of the northerly portion of the Property as part and parcel of Lot 123 and, if the northerly portion of the Property is not part and parcel of Lot 123, Plaintiffs claim title to the northerly portion of the Property under their deed dated October 13, 1987; and by virtue of the fact that their use and possession of the northerly portion of the Property from that date, tacked with the use and possession of Plaintiffs Grantors, has been actual, continuous, visible, notorious and hostile to Defendants claims to the northerly portion of the Property. Count II -Acquiescence 20. Plaintiffs reallege the allegations of paragraph 1 through 19 of this Complaint as if fully repeated in this paragraph 20. To the extent that allegations contained in this Count II are inconsistent with any other allegations contained in this Complaint, the allegations contained in this Count II are made in the alternative. 21. Upon information and belief, certain errors and inaccuracies exist in the recorded plat and/or existing surveys relative to the boundary line between Lot 123 and 124 in that all or part of the northerly portion of Plaintiffs Property as used and possessed by Plaintiffs and their predecessors in title has always been used, considered and relied on as the boundary line between Lot 123 and 124. 22. Upon information and belief, Plaintiffs predecessors in title, as well as Defendants and their predecessors in title, have always accepted, agreed, recognized and acquiesced that all or part of the northerly portion of the Property as used and possessed by Plaintiffs and Plaintiffs Grantors was the real and actual boundary between Lot 123 and 124, and that said boundary line has existed, upon information and belief, for more than 15 years before Plaintiff brought this action, and was never disputed by Defendants until sometime after August 31, 1993. WHEREFORE, Plaintiffs respectfully request this Court grant the following relief as to Count I and/or Count II: A. That title of the Property, including the northerly portion of the property be forever quieted in Plaintiffs; B. That this Court find that any interest Defendants may have had to the northerly portion of the Property has been cut off by adverse possession by Plaintiffs and Plaintiffs Grantors for a period of more than 15 years, and/or by the acquiescence of Defendants and their predecessors in title, and that any claims of Defendants to the Property, including the northerly portion of the Property, are now illegal and void; C. That this Court adjudge that Defendants and any and all persons claiming under them, have no right, title or interest in and to the Property or any part thereof, including the northerly portion of the Property, and that Plaintiffs shall have leave to cause such Judgment to be recorded in the office of the Register of Deeds of Oakland County, Michigan; D. That this Court issue a permanent injunction enjoining Defendants, their agents, servants, representatives, family, guests, invitees, licensees, contractors, tenants, employees, successors or assigns (Defendants), or anyone acting in concert with Defendants, from interfering with Plaintiffs quiet enjoyment of Lot 123, including the disputed northerly portion of Lot 123, and further enjoining Defendants from entering upon, changing (including changing the existing grade to Defendants driveway) or utilizing in any way the disputed northerly portion of Lot 123 in any way other than those uses of said Property as may have existed as of the date of the filing of Plaintiffs Verified Complaint; and, E. That Plaintiffs may have whatever other and further or different relief as this Court deems lawful and proper. Count III -Easement 23. Plaintiffs reallege the allegations of paragraph 1 through 22 of this Complaint as if fully repeated in this paragraph 23. To the extent that allegations contained in this Count III are inconsistent with any other allegations contained in this Complaint, the allegations contained in this Count III are made in the alternative. 24. Plaintiffs have an easement either by prescription, necessity, implication or grant over all or part of the northerly portion of the Property in that Plaintiffs and Plaintiffs Grantors have used the northerly portion of the Property as the only exterior means of ingress and egress to the backyard of the Property . 25. Defendants refuse to recognize Plaintiffs easement and are attempting to prevent Plaintiffs from using the northerly portion of the Property thereby causing Plaintiffs irreparable injury. WHEREFORE, Plaintiffs respectfully request this Court grant the following relief as to Count III: A. That Plaintiffs be decreed by Judgment of this Court to have an easement for ingress and egress to their backyard by prescription, necessity, implication or grant to all or part of the disputed northerly portion of the Property and that Plaintiffs shall have leave to cause such Judgment to be recorded in the office of the Register of Deeds of Oakland County, Michigan; B. That Defendants be permanently enjoined from interfering with Plaintiffs quiet enjoyment or their easement upon all or part of the disputed northerly portion of the Property; and, C. That Plaintiffs may have whatever other and further or different relief as this Court deems lawful and proper. Count IV -Nuisance 26. Plaintiffs reallege the allegations of paragraph 1 through 25 of this Complaint as if fully repeated in this paragraph 26. To the extent that allegations contained in this Count IV are inconsistent with any other allegations contained in this Complaint, the allegations contained in this Count IV are made in the alternative. 27. Defendants have represented to Plaintiffs that Defendants will change the existing grade on Defendants driveway. 28. Upon information and belief, this change in the existing grade will cause water to run off into Plaintiffs Property and negatively impact the foundation of Plaintiffs house. 29. By reason of Defendants expressed intent to change the grade of the properties Plaintiffs' Property will be irreparably harmed in that the presently sound foundation of Plaintiffs home may become unsound as a result of water run off from Defendants Property. 30. Unless restrained and enjoined by this Court, Defendants will execute their plan to change the grade of the Property and, upon information and belief, thereby cause irreparable harm to Plaintiffs. WHEREFORE, Plaintiffs respectfully request this Court grant the following relief A. That Defendants be permanently enjoined from changing the existing grade on the southerly portion of Defendants Property and/or the northerly portion of Plaintiffs Property; and, B. That Plaintiffs may have whatever other and further or different relief as this Court deems lawful and proper. Respectfully submitted, BUTZEL LONG By: _____________________________ Patrick A. Karbowski (P40577) 100 Bloomfield Hills Parkway Suite 200 Bloomfield Hills, Michigan 48304 (248) 258-1616 Attorneys for Plaintiffs Dated: April 2, 2001 [VERIFICATION PAGE TO FOLLOW] VERIFICATION STATE OF MICHIGAN ) ) COUNTY OF OAKLAND ) Robert Homeowner and Eileen Homeowner, being duly sworn say: We are the Plaintiffs to the above encaptioned lawsuit. We have read the above Verified Complaint and the factual statements contained in Plaintiffs Motions for Temporary Restraining Order and Preliminary Injunction and Plaintiffs Briefs in Support of said Motions and know the contents of these documents to be true of our own knowledge, except those matters stated to be on information and belief, which we believe to be true. _______________________________ Robert Homeowner _______________________________ Eileen Homeowner STATE OF MICHIGAN ) :ss COUNTY OF OAKLAND ) The foregoing instrument was acknowledged before me this 12th day of April, 1994 by Robert Homeowner and Eileen Homeowner, who are known to me, or who presented sufficient evidence of identity to me. ________________________________________________ , Notary Public __________________ County, _______________________ My commission expires: ____________________________