kroha: potholes in the motor city

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Potholes in the Motor City: How VacantProperties and Neighborhood

Stabilization Can Subject Detroit andSimilarly Situated Municipalities to

Liability

KIM KROHA

ABSTRACT

In the wake of foreclosures and declining population in industrialareas, many vacant buildings and abandoned land sit within the City ofDetroits boundaries. Approximately forty square miles, roughly the size ofMiami Beach, is completely vacant. To combat the problem, Detroit isacquiring abandoned property and demolishing abandoned anddangerous structures. Detroit also began an initiative to right-size thecitys population and services into viable areas, reducing or eliminatingcity services to non-viable areas.

Although Detroit is working to stabilize the city, the risk of injury toprivate parties is significant. To protect taxpayer money and governmentbudgets, a private party can only sue government entities in very limited

circumstances. Municipal immunity differs by stateMichigan has broadprotections for municipalities. However, there are several ways that theCity of Detroit can be held liable for its demolition and right-sizeinitiatives. Through a focus on Detroit and Michigan law, this Notediscusses governmental immunity law and how municipalities can incurliability through their efforts to fight vacancy and stabilize neighborhoods.Additionally, this Note discusses actions that municipalities can take tolimit liability from injury caused by these efforts.

Candidate for Juris Doctor, New England Law | Boston (2013). B.S., Finance, magna cum

laude, Florida Atlantic University (2002). I would like to thank my husband, family, and

friends for their continued support, especially my Michigan friends and family for keeping

me updated on local flavor and new developments to this topic. I would also like to thank the

Law Review staff for their valuable editing and polishing.


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INTRODUCTION

n cities and towns across the United States, local governments are

absorbing large quantities of vacant and abandoned properties.1

The138 square-mile City of Detroit is one of the hardest hit areas in thecountry; it suffers from a budget crisis and tremendous vacancy.2 Detroithas seen a mass exodus in population; in 2010 the population dropped to713,777, less than it was almost a hundred years earlier. 3 To combat the glutof vacant structures caused by the declining population, Mayor Dave Bingannounced an initiative in 2010 to knock down 10,000 vacant structuresduring his first term in office, through 2013, and to right-size the cityspopulation by encouraging relocation into viable areas.4 Vacant land inDetroitapproximately forty square milesis roughly the size of MiamiBeach.5 The right-size initiative includes encouraging property owners torelocate into designated viable communities and reducing services todesignated non-viable communities.6

Using the City of Detroit and Michigan Law as a case study, this Notewill review governmental immunity law and how municipalities

1 Brian Louis, Rust Belt Cities Demolish Homes as Defaults Blight Neighborhoods, BLOOMBERG

(Nov. 18, 2010, 12:01 AM), http://www.bloomberg.com/news/2010-11-18/rust-belt-cities

-demolish-homes-as-foreclosures-blight-cleveland-detroit.html (discussing demolition efforts

of vacant structures in Rust Belt cities).2 See id.; Review Team to Examine Detroit Finances, MICHIGAN.GOV (Dec. 27, 2011),

http://www.michigan.gov/business/0,4539,7-255--268150--,00.html; SE.MICH.COUNCIL

OF GOVTS, HISTORICAL POPULATION AND EMPLOYMENT BY MINOR CIVIL DIVISION tbl.3 (2002),

available at http://library.semcog.org/InmagicGenie/ DocumentFolder/HistoricalPopulation

SEMI.pdf.3 Compare SE.MICH.COUNCIL OF GOVTS,supra note 2 (listing Detroits population in 1920

at 993,678), with U.S. CENSUS BUREAU, Detroit (city), Michigan, QUICKFACTS.CENSUS.GOV,

http://quickfacts.census.gov/qfd/states/26/2622000.html (last visited Apr. 13, 2013) [hereinafter

STATE &COUNTY QUICKFACTS] (listing Detroits population in 2010 at 713,777).4 Dave Bing, Mayor of Detroit, State of the City 2010 (Mar. 23, 2010), available at

http://www.detroitmi.gov/Portals/0/docs/mayor/SOC_3-23-10.pdf;

Edward L. Glaeser, Shrinking Detroit Back to Greatness, N.Y. TIMES (Mar. 16, 2010, 6:56 AM),

http://economix.blogs.nytimes.com/2010/03/16/shrinking-detroit-back-to-greatness/;

Residential Demolition Program, DETROIT.GOV,http://www.detroitmi.gov/Departmentsand

Agencies/MayorsOffice/ResidentialDemolitionProgram/tabid/2992/Default.aspx

(last visited Apr. 13, 2013).5 Kate Davidson, Detroit Has Tons of Vacant Land. But Forty Square Miles?, CHANGING GEARS

(Apr. 18, 2012, 8:29 AM), http://www.changinggears.info/2012/04/18/detroit-has-tons-of-

vacant-land-but-forty-square-miles.6 See Realities, DETROIT WORKS PROJECT, http://detroitworksproject.com/planning/realities/

(last visited Apr. 13, 2013).

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attempting to remedy vacancy issues can incur liability. Althoughmunicipalities have immunity from many tort claims, there are exceptionsdiffering by jurisdiction that allow municipal liability for tort actions. Part I

of this Note will review Detroits population decline and vacant buildingproblem that affects the city. Part II will review municipal immunity law inMichigan and existing and potential immunity exceptions. Part III willdiscuss how Detroit can be subject to liability for claims based on vacantproperty acquisition, demolition, expansive property ownership, right-sizing Detroit, and the use of federal Neighborhood Stabilization Programfunds to further these initiatives.

In that regard, Part III will further explore how Detroit should: (a)make sure any profits earned from real estate dispositions are used forother real estate development to help avoid the proprietary exception; (b)obtain waivers from invitees on government-owned property wherepossible and post no trespassing signs on property where the public is not

invited; (c) avoid gaining any financial advantages when purchasingprivate properties in areas the city deems to be less viable in its campaignto right-size the citys population into designated and viable areas; and(d) maintain close control on procedures for acquiring property to ensureall notice and statutory requirements are met. Although Detroit cannotfully shield itself from liability, certain efforts can reduce liability risks andthereby protect reduced budgets and benefit neighborhood stabilization.

I. Vacancy Issues After Decline of the Once Vibrant City of Detroit

Detroit recorded almost two million city residents at its height in 1950.7Since that height, Detroits population steadily declined to less than half in2011.8 Moreover, the population dropped a staggering 25% between 2000

and 2010.9

The declining population created a surplus of housing,buildings, and vacant property lots in the city.10

To combat the problem, the Detroit has been demolishing tens ofthousands of vacant buildings since 1990.11 Even in 2002, before thehousing bubble burst, the Detroit spent an estimated $800,000 maintainingvacant lots.12 The problem is even more prevalent now: of the 349,170

7 SE.MICH.COUNCIL OF GOVTS, supra note 2 (noting a 1950 population of 1,849,568).8 STATE &COUNTY QUICKFACTS, supra note 3.9 Id.; Katharine Q. Seelye, Detroit Census Confirms a Desertion Like No Other, N.Y. TIMES

(Mar. 22, 2011), http://www.nytimes.com /2011/03/23/us/23detroit.html.10 Jodi Wilgoren, Detroit Urban Renewal Without the Renewal, N.Y. TIMES (July 7, 2002),

http://www.nytimes.com/2002/07/07/us/detroit-urban-renewal-without-the-renewal.html.11 Id.12 Id.


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housing units listed in the 2010 Census, almost 23% are vacant.13 Vacantbuildings are often unmanaged and dangerous.14 Uninhabited structuresare targets for graffiti and vandalism, provide a haven for illegal drug

activity, and encourage unlawful possession of property, circumstancesthat can have a spiraling and amplifying effect on surrounding propertyconditions.15

A study in Austin, Texas found vacant properties to be highlysusceptible to use for illegal activities.16 The study found that 34% ofabandoned properties surveyed (and if unsecured 83%) were used forillegal activities.17 Vacant and abandoned properties, together with lack ofemployment and poverty, led Detroit to the number one spot on the 2009Forbes list of ten most dangerous cities.18 Regarding Detroits decline,author Thomas J. Sugrue wrote, Factories that once provided tens ofthousands of jobs now stand as hollow shells, windows broken, mutetestimony to a lost industrial past.19

As of October 2012, Detroit Mayor Dave Bing demolished over 5,100structures of the 10,000 structure goal announced in 2010.20 Propertiesacquired in connection with the initiative will add to the 40,000 vacant lots(over 5,000 lots with structures) already owned by the city.21 Primarilyfunded by the Neighborhood Stabilization Program, Detroits demolitioninitiative operates predominately on the forty-seven million dollars itreceives from this federal program.22 From these federal funds,

13 SEMCOG, 2010 Census Data for City of Detroit Neighborhoods, QUICK FACTS (April 5, 2011),

http://library.semcog.org/InmagicGenie/DocumentFolder/2010CensusDataDetroitQuickFacts.

pdf.14 John Bailey, Vacant Properties and Smart Growth: Creating Opportunity from Abandonment,

in 1 LIVABLE COMMUNITIES @WORK 1, 1, 5 (Cheryl Little ed. 2004), available at http://www.

fundersnetwork.org/files/learn/LCW_4_Vacant_Properties.pdf.15 Keith H. Hirokawa & Ira Gonzalez, Regulating Vacant Property, 42 URB.LAW. 627, 628-29

(2010).16 Bailey, supra note 14, at 5.17 Id.18 Zack OMalley Greenburg, Americas Most Dangerous Cities, FORBES (Apr. 23, 2009, 6:00

PM), http://www.forbes.com/2009/04/23/most-dangerous-cities-lifestyle-real-estate-dangerous

-american-cities.html.19 THOMAS J. SUGRUE, THE ORIGINS OF THE URBAN CRISIS: RACE AND INEQUALITY IN

POSTWAR DETROIT 3 (1st Princeton Class ed. 2005).20 Bing, supra note4; Residential Demolition Program, supra note 4.21 Christine MacDonald, Vacant Homes Stoke Woes in Detroit,DETROIT NEWS, Dec. 26, 2011,

at A3, available at 2011 WLNR 26604890.22 DOUGLASSJ.DIGGS &MARJA M.WINTERS,CITY OF DETROIT PLANNING AND

DEVELOPMENT DEPARTMENT:NEIGHBORHOOD STABILIZATION PROGRAM PLAN 32


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approximately fourteen million dollars is slated for demolition and fourmillion dollars for acquisition.23 However, fourteen million dollars willonly provide for about 1,100 demolition projects.24 The demolition initiative

is part of the right-size plan to bring larger neighborhood stabilization toDetroit.25

The City of Detroit plans to invest in its most stable neighborhoods inan attempt to centralize the population, allowing the city to focus fundsand services to certain areas for residents in the city.26 However, the citysefforts to acquire foreclosed property, relocate residents, own and manageadditional properties, and redevelop former private property for moreviable uses can expose the city to liability.27 Although Michigan lawprovides municipalities immunity from liability in many situations, theCity of Detroits right-sizing initiatives could expose it to liability.28 Thecity needs to limit liability claims and costs, particularly because of majorbudget constraints, which reduced the 2012-2013 budget by 16% from the

prior year.29

II. Liability Pitfalls: Exceptions to Municipal Immunity

Governmental immunity is a valued principal in the United States ofAmerica.30 Derived from English jurisprudence, governmental immunityoriginated from the idea that no court had jurisdiction to bring a claim

(2009) [hereinafter DETROIT NSPPLAN], available at http://www.ci.detroit.mi.us/Portals/0/

docs/planning/pdf/NSP_Approved/detroitNSP_R31_29_09_2.pdf.23 Id.24 City of Detroit Planning and Dev. Dept, Neighborhood Stabilization Program Frequently

Asked Questions, DETROITMI.GOV (Dec. 17, 2009), http://www.detroitmi.gov/Portals/0/docs/

planning/pdf/NSP2010/NSP%20FAQ%2012-17-09%20rev.pdf.25 See DETROIT NSPPLAN, supra note 22, at 5-6.26 See id. at 7 (Detroit also plans to use NSP funds to demolish properties on a

concentrated, limited basis in more stable neighborhoods to rid communities of problem

properties, but on a larger basis in neighborhoods . . . where a housing revitalization strategy

is unlikely to be successful in the short term.).27 Seeinfra Part III.28 Id.29 Barry Wood, Out of Money, Detroit Cuts Back, Fights Back, MARKETWATCH (Aug. 28,

2012), http://articles.marketwatch.com/2012-08-28/commentary/33426867_1_detroit-finances-

mayor-kwame-kilpatrick-emergency-manager.30 See Terence J. Centner, Discerning Immunity for Governmental Entities: Analyzing Legislative

Choices, 24 REV.POLY RES. 425, 425 (2007) ([T]he sovereignty enjoyed by the13 independent colonies before the ratification of the federal Constitution established

the principle of sovereign immunity.) (alteration to the original).


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against the King.31 The Eleventh Amendment to the United StatesConstitution established sovereign immunity for the states.32 Although theEleventh Amendment does not directly protect municipalities,

governmental immunity was extended to municipalities through statelegislation and judicial interpretation.33 However, states have not providedtotal immunity for their municipalities. Depending on the state,municipalities can be held liable for: (1) actions that are proprietary innature;34 (2) dangerous conditions known to the municipality but notreadily apparent to the public;35 (3) willful, wanton, gross, or recklessmisconduct;36 and (4) actions for which immunity has been explicitlywaived by statute or, in some cases, by the municipalitys purchase ofliability insurance.37

A. States Laws Typically Provide Governmental Immunity forActivities That Are Not Proprietary Functions.

Michigan (and other states) extends immunity to municipalities formost activities38 that are strictly governmental in nature, but not for actsconducted in a proprietary function.39 A statute provides municipal

31 Mark L. Van Valkenburgh,Massachusetts General Laws Chapter 258, 10: Slouching Toward

Sovereign Immunity, 29 NEW ENG.L.REV. 1079, 1081 (1995).32 U.S.CONST. amend. XI.33 See Centner, supra note 30, at 426; State Sovereign Immunity and Tort Liability, NATL CONF.

OF STATE LEGIS., http://www.ncsl.org/issues-research/transport/state-sovereign-immunity-

and-tort-liability.aspx (last updated Sept. 8, 2010).34 18 MCQUILLIN,THE LAW OF MUNICIPAL CORPORATIONS 53.02.10 (3d ed. rev. vol . 1993).35 See, e.g., Gerald T. Wetherington & Donald I. Pollock, Tort Suits Against Governmental

Entities in Florida, 44 FLA.L.REV. 1, 15 (1992).36 Seeid. at 87.37 See 18 MCQUILLAN, supra note 34, 52.02.10.38 See Coleman v. Kootsillas, 575 N.W.2d 527, 529 (Mich. 1998) (discussing the broad grant

of immunity under Michigan law). There are statutory and common law exceptions, such as

latent defects known to the municipality. See 19 MCQUILLAN, THE LAW OF MUNICIPAL

CORPORATIONS 54:13, at 88 (3d ed. 1999) (Ordinary care must be exercised both as to patent

defects and also as to latent defects.).39 Coleman, 575 N.W.2d at 531 (holding the government liable because it engaged in a

proprietary activity by profiting from waste collection and disposal of both commercial

accounts and to city residents). See, e.g., Tango v. City of New Haven, 377 A.2d 284, 285 (Conn.

1977) (Where the municipality through its agent or employee acts in the performance of a

governmental duty, it has a limited immunity from liability; but when the act complained of is

ministerial, the municipality is responsible for its negligent execution.) (citation omitted);

Westbrook v. City of Jackson, 665 So. 2d 833, 836 (Miss. 1995) (Sovereign immunity cloaks all

governmental functions a city performs.); Vaughn v. Cnty. of Durham, 240 S.E.2d 456, 458

(N.C. 1977) (When the activity of a governmental entity is clearly governmental in nature,


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immunity from liability created by the municipalitys actions duringperformance of governmental functions.40 But immunity is not applicablefor actions to recover for bodily injury or property damage arising out of

the performance of a proprietary function.41

A proprietary function isdefined as any activity [that] is conducted primarily for the purpose ofproducing a pecuniary profit for the governmental agency, excluding,however, any activity normally supported by taxes or fees. 42

The test to distinguish between governmental and proprietary actionsis not always clear, but generally depends on the nature of the activitynot the physical location of the activity.43 Government functions can also beexplicitly authorized by constitutional amendment, statute, or law.44Proprietary functions can exist within a larger government function, suchas a profit-generating ride within a public park.45 And if the public portionof the activity is only incidental to the profit-generating portion,government liability can attach to the public areas also, such as a public

park adjacent to a water treatment facility.46

Michigan courts construe activities to be proprietary, and thus subjectto liability, when the activities are conducted primarily for the purpose ofgenerating profit and are not normally supported by taxes and fees.47 Theexception to immunity derives from keeping the municipalities on an evenlevel with private corporations when they are involved in

and not proprietary, the rule of sovereign immunity will protect the government from suit.);

Virginia Elec. & Power Co. v. Hampton Redevelopment & Hous. Auth., 225 S.E.2d 364, 368

(Va. 1976) (A municipality acts in a dual capacity, the one governmental and the other

proprietary. In failing to perform or in negligently performing governmental functions, the

municipality is immune from tort liability. With respect to proprietary functions, however, it

is not so immune.).40 MICH.COMP.LAWS ANN. 691.1407 (West 2012).41 Id. at 691.1413.42 Id.43 Sioux Falls Const. Co. v. City of Sioux Falls, 297 N.W.2d 454, 457 (S.D. 1980); Parker v.

City of Highland Park, 273 N.W.2d 413, 416-17 (Mich. 1978).44 See Ross v. Consumers Power Co., 363 N.W.2d 641, 671 (Mich. 1984).45 Matthews v. City of Detroit, 289 N.W. 115, 118 (Mich. 1939) (holding that operation of a

for-profit miniature railroad is a proprietary function although the railroad that caused the

injury was only a small portion of the public park operation, which was governmental

function).46 Carlisi v. City of Marysville, 128 N.W.2d 477, 483 (Mich. 1964) (holding that the City was

subject to liability for an injury occurring in a property used as a city park because the

primary function of the property, a water filtration complex, was for profit; the city park use

was incidental).47 Ward v. Mich. State Univ. (On Remand), 782 N.W.2d 514, 520 (Mich. Ct. App. 2010)

(citing Coleman v. Kootsillas, 575 N.W.2d 527, 530 (Mich. 1998)).


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nongovernmental functions.48

The importance of the proprietary exception from immunity isdemonstrated in Texas and New York.49 The New York Court of Appeals

held that the state does not have immunity when it acts as a landlord,finding the state liable for damages to a college student assaulted in acollege dormitory.50 However, Texas does not have proprietary thefunction exception to immunity, therefore it came to the oppositeconclusion on similar facts.51 In Virginia, where the proprietary functionexception is recognized, the operation and maintenance of low-incomehousing is a proprietary function; therefore, the state found the housingauthority (as a municipal corporation) subject to liability for negligentmaintenance.52

B. Municipalities Performing Government Functions Can Be Subject toLiability Due to Possible Exceptions to Immunity

Other common law and statutory exceptions from governmentalimmunity may be available to potential claimants.53 Some states providebroad immunity from liability and carve out certain exceptions to thatimmunity.54 Other states consider all municipal activities subject to liabilityand then provide specific exceptions when immunity applies.55 Michiganprovides broad immunity and allows liability for only recognized statutoryexceptions.56 Recognized statutory exceptions are: public building defects;57performance of a proprietary function;58 ownership and operation of a

48 Lisiecki v. Detroit-Wayne Joint Bldg. Auth., 111 N.W.2d 803, 805 (Mich. 1961).49 Seeinfra notes 50-51 and accompanying text.50 Miller v. State, 467 N.E.2d 493, 494 (N.Y. 1984) (When the State operates housing, it is

held to the same duty as private landlords in the maintenance of physical security devices in

the building itself. Thus, a student who is injured in a criminal assault in a State-operated

college dormitory may recover damages against the State in its capacity as a landlord . . . .)

(citation omitted).51 Delaney v. Univ. of Houston, 792 S.W.2d 733, 738 (Tex. Ct. App. 1990), rev'd on other

grounds, 835 S.W.2d 56 (Tex. 1992) (dismissing a students claim against the state for damages

from her rape in a college dormitory, because Texas does not apply the proprietary function

exception).52 Virginia Elec. & Power Co. v. Hampton Redev. & Hous. Auth., 225 S.E.2d 364, 369 (Va.

1976).53 18 MCQUILLIN,supra note 34, 52.02.05.54 Id. 52.03.55 Id.

56 Pohutski v. City of Allen Park, 641 N.W.2d 219, 226 (Mich. 2002).57 MICH.COMP.LAWS ANN. 691.1406 (West 2012).58 Id. 691.1413.


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government hospital;59 negligent operation of government vehicles;60failure to maintain highways;61 and sewage-disposal-system events.62

1. The Public Building Exception Creates Liability Risk forGovernment-Owned Buildings Open to Public Use.

The public building exception allows plaintiffs to hold municipalitiesliable for damages that occur in and around government ownedbuildings.63 Under this exception, municipalities are subject to liability forinjuries caused by a building defect or condition that: (1) occurs in abuilding under the governments ownership and control; (2) occurs in abuilding that is open for use by the public; (3) is known or which should beknown by the municipality; and (4) is not being corrected by themunicipality.64

The publics accessibility to the building, not the use of the building,determines whether the building is open for public use. 65 The building does

not need to be open to the general public; the public building exceptionapplies even if limited public access is permitted.66 Municipalities can becharged with knowledge of the defect if a reasonable inspection wouldhave discovered the defect.67

Liability can occur due to dangerous conditions in a governmentbuilding or on the surrounding property.68 The public building exceptionprotects the public from the governments negligent maintenance of itsproperty.69 However, the tests are often strict: temporary conditions, suchas water on the ground, do not constitute a condition causing liability. 70

59 Id. 691.1407(4).60 Id. 691.1405.61 Id. 691.1402.62 Id. 691.1417(3); Pohutski v. City of Allen Park, 641 N.W.2d 219, 229 (Mich. 2002).63 MICH.COMP.LAWS ANN. 691.1406 (West 2012).64 Id.65 Brown v. Genesee Cnty., 564 N.W.2d 125, 127 (Mich. Ct. App. 1997) ([T]he focus . . . [of

the inquiry] is on the accessibility to members of the general public, rather than on the extent

to which the building might benefit the community.) (alteration to original) (citation

omitted) (quoting Steele v. Dep't of Corrs., 546 N.W.2d 725, 728 (Mich. Ct. App. 1996)).66 Kerbersky v. N. Mich. Univ., 582 N.W.2d 828, 832 (Mich. 1998).67 See Ali v. City of Detroit, 554 N.W.2d 384, 387 (Mich. Ct. App. 1996) (finding

constructive notice where regular maintenance and inspection of a bus shelter would have

found the defect).68 Velmer v. Baraga Area Schs., 424 N.W.2d 770, 774 (Mich. 1988) (noting that the injury

must be caused by building itself).69 Archibeque v. Moya, 866 P.2d 344, 347 (N.M. 1993).70 Shedrick v. William Penn Sch. Dist., 654 A.2d 163, 165 (Pa. Commw. Ct. 1995) (finding


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2. Inverse Condemnation Creates Liability Risk forGovernment Actions that Reduce the Value of PrivateProperty.71

Courts have also found municipalities liable when the municipalitiesinterfere with private property under the Takings Clause of the MichiganConstitution.72 An inverse condemnation claim under the Takings Clauseoccurs when a government does not actually take private property, butdamages the property through public improvements or activities.73 Aplaintiff can claim inverse condemnation and obtain damages fordiminished private property value when a government delayscondemnation proceeding in an attempt to lower property values that itwould otherwise owe property owners for the condemnation.74

To prove inverse condemnation, a claimant must show (1) thatgovernment actions were a substantial cause of the decline of claimantsproperty value, and that (2) the government abused its legitimate powers

in affirmative action directly aimed at the plaintiffs property.75 Theplaintiff must show an overt action by the municipality against theplaintiffs property.76 Additionally, the plaintiff cannot simply suffer aninjury common to others similarly situated, such as damages caused byroad salt that are comparable to damages to all properties along ahighway.77

the municipality not liable for injuries because water on floor is not a defect of floor itself).71

Inverse condemnation occurs when a governmental entity takes private propertywithout bringing formal condemnation proceedings. BLACKS LAW DICTIONARY 332 (9th ed.

2009).72 Pohutski v. City of Allen Park, 641 N.W.2d 219, 239 (Mich. 2002) (Kelly, J., dissenting).73 Merkur Steel Supply, Inc. v. City of Detroit, 680 N.W.2d 485, 494 (Mich. Ct. App. 2004).74 See Heinrich v. City of Detroit, 282 N.W.2d 448, 451-52 (Mich. Ct. App. 1979).75 Id. (citing Holloway Citizens Comm. v. Cnty. of Genesee, 196 N.W.2d 484, 485 (Mich. Ct.

App. 1972)).76 Compare Hinojosa v. Dept of Natural Res., 688 N.W.2d 550, 557 (Mich. Ct. App. 2004)

(barring a claim against a state agency for property damage based on trespass-nuisance tort

for fire spread from a nearby abandoned house owned by the state through tax delinquency

proceedings), with Allen v. City of Laingsburg, No. 286031, 2010 WL 539823, at *4 (Mich. Ct.

App. 2010) (distinguishing Hinojosa because the plaintiff in Allen alleged that the defendant

municipality had done an overt act to cause the problem by modifying the elevation of the

municipality owned property and the plaintiff in Hinojosa had only alleged that at most, thestate failed to abate a fire hazard nuisance).

77 Blue Harvest, Inc. v. Dept. of Transp., 792 N.W.2d 798, 808 (Mich. Ct. App. 2010).


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3. Real Estate Acquisition by Government Entities CreatesLiability Risk When Procedures Are Negligent.

Improper acquisitions can create legal challenges and reversion ofproperty ownership to the private party.78 Municipalities primarily acquireprivate property through tax foreclosures.79 If the foreclosing entity filesimproper notice that does not meet constitutional requirements, theresulting tax foreclosure judgment violates the partys due process rights.80The injured property owner is entitled to rescission of the foreclosure andis vested with ownership of the property again.81 Additionally, if thegovernment performs any actions on the property after acquisition, such asdemolition, the government can be liable under inverse condemnation as ataking of the property.82

4. The Trespass-Nuisance Exception Creates Liability Risk forGovernment Created or Controlled Nuisances in

Jurisdictions Where Recognized.

Additionally, some jurisdictions allow plaintiffs to obtain damagesagainst the government for government created or controlled nuisancesthat damage the plaintiffs property.83 Under this exception, nuisancescreated at municipally-owned vacant properties may create liability for themunicipality for damage caused to adjacent properties.84 Moreover, therewas a period in Michigan jurisprudence when the nuisance did not need tooriginate from municipally owned property if the municipality caused thetrespass.85 However, in 2002, the Michigan Supreme Court held that the

78 Sidun v. Wayne Cnty., 751 N.W.2d 453, 462-63 (Mich. 2008); Ligon v. City of Detroit, 739

N.W.2d 900, 907-08 (Mich. Ct. App. 2007).79 U.S.DEPT OF HOUS.&URBAN DEV.,REVITALIZING FORECLOSED PROPERTIES WITH LAND

BANKS 2 (2009), available at http://huduser.org/portal/publications/landbanks.pdf.80 Sidun, 751 N.W.2d at 462.81 Id. at 462-63.82 Ligon, 739 N.W.2d at 907-08.83 E.g., Picco v. Town of Voluntown, 989 A.2d 593, 599 (Conn. 2010) (recognizing nuisance

claims against government entities based on a state statute); Gooden v. City of Atlanta, 531

S.E.2d 364, 366 (Ga. Ct. App. 2000) (observing that county and municipal governmental tort

immunity does not apply in a nuisance action); Bd. of Educ. of Prince Georges Cnty. v. Mayor

& Common Council of Riverdale, 578 A.2d 207, 209 (Md. 1990) (observing that municipal

governmental tort immunity does not apply in a nuisance action).84 Gerzeski v. State, 268 N.W.2d 525, 533 (Mich. 1978) (The . . . exception to judicial

immunity consists of those situations wherein damage is caused by the direct trespass of aninstrumentality from government-owned land onto private property.).

85 Hadfield v. Oakland Cnty. Drain Commr, 422 N.W.2d 205, 208 (Mich. 1988) (Trespass-


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Governmental Tort Liability Act (GTLA) abrogated the trespass-nuisanceexception to liability against municipalities and the Michigan Court ofAppeals rejected the trespass-nuisance exception against the state.86

After GTLA, these Michigan decisions overruled years of precedentpermitting the trespass-nuisance exception to survive, but it is possible thatthere could be a future challenge.87 If the dissents view in Pohutski gainsmomentum, the trespass-nuisance exception to government liability couldagain become relevant to municipalities.88

ANALYSIS

III. Government Expansion of Property Ownership Will Create VariousLiability Concerns Far Into the Future.

Although Michigan laws provide broad immunity for municipalities,some activities planned and performed by the City of Detroit can still

create liability.89 Redevelopment of government-owned parcels may beconsidered a proprietary function; subjecting the City to liability because itwould be acting more like a private entity than a government.90Additionally, as the City expands its real estate ownership, it exposes itselfto potential liability for injuries that occur on those properties.91 Also,right-sizing the Citys population into areas deemed viable may createinverse condemnation claims if properties situated in the areas deemednon-viable suffer value reduction due to such designation.92 If the Citysacquisition notice to property owners is inadequate, the City may berequired to give the property back or be subject to liability for inverse

nuisance shall be defined as a direct trespass upon, or the interference with the use or

enjoyment of, land that results from a physical intrusion caused by, or under the control of, a

governmental entity.), overruled by Pohtski v. City of Allen Park, 641 N.W.2d 219, 229 (Mich.

2002).86See MICH.COMP.LAWS ANN. 691.1407(1) (West 2012); see also Pohutski, 641 N.W.2d at

229 (holding that the trespass-nuisance doctrine could still be used for liability against the

state, but not against a municipality because municipal liability could only be found in

statutory exceptions, not common-law exceptions); Blue Harvest, Inc. v. Dept. of Transp., 792

N.W.2d 798, 808 (Mich. Ct. App. 2010) (holding that the trespass-nuisance doctrine could not

be used for liability against the state).87 See Lessard v. City of Allen Park, 372 F. Supp. 2d 1007, 1010-11 (E.D. Mich. 2005).88 Pohutski, 641 N.W.2d at 235 (Kelly, J., dissenting).89 Seeinfra Part III.A.

90 Seeinfra Part III.A.91 MICH.COMP.LAWS ANN. 691.1413 (West 2012); seeinfra Part III.B.1.92 Seeinfra Part III.B.2.


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condemnation.93 Furthermore, new justices on the Michigan SupremeCourt may allow additional liability against the City in the future. 94

A. Property Redevelopment Can Be a Proprietary Function CreatingMunicipal Liability Without Safeguards on Profits and Tax Use.

Municipalities enacted various actions to both streamline privateproperty acquisition and enhance government oversight of vacant andabandoned properties.95 These activities could subject the municipalities toliability because proprietary government actions are not grantedimmunity.96 Michigan classifies a municipalitys action as a proprietaryfunction if the action is: (1) conducted primarily for the purpose ofproducing pecuniary profit; and (2) not normally supported by taxes andfees.97 Courts have also found activities to be proprietary where the profit-generating activity is only a part of a larger governmental function.98Property ownership can be a governmental or proprietary function

depending on the use of the property.99

To help prevent real estate activities from being considered proprietary

functions, municipalities should make sure any profits earned through realestate activities are only used to fund other real estate activitiesnotprojects in different departments.100 Dextrom v. Wexford Countydemonstrates how municipalities can incur liability through governmentalactivities if the municipality profits from the activity and uses the profitsfor separate activities.101 In Dextrom, the Michigan Court of Appealsquestioned whether a municipal landfills trash acceptance from aneighboring county constituted a proprietary operation.102 Residents suedthe County for damages resulting from groundwater well contamination

93 Seeinfra Part III.B.3.94 Seeinfra Part III.B.4.95 DETROIT NSPPLAN, supra note 22, at 33.96 Seeinfra Part III.A.1.97 Ward v. Mich. State Univ. (On Remand), 782 N.W.2d 514, 520 (Mich. Ct. App. 2010).98 See, e.g., Carlisi v. City of Marysville, 128 N.W.2d 477, 483 (Mich. 1964).99 Cf. Rohrabaugh v. Huron-Clinton Metro. Auth. Corp., 256 N.W.2d 240, 241, 243 (Mich.

Ct. App. 1977) (holding that a municipalitys operation of a roller rink on a public park is a

proprietary function because the uses were not related and the roller rink drew people

regardless of the fact that it was in a parkeven though operation of a park is traditionally a

government function).

100 Dextrom v. Wexford Cnty., 789 N.W.2d 211, 215, 222-23 (Mich. Ct. App. 2010).101 Seeid. at 216.102 Id. at 216, 222.


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traced back to the landfill.103 When the County moved for summaryjudgment based on governmental immunity, the residents argued thatoperation of the landfill was a proprietary function because the County

profited from accepting out-of-county waste.104

Although acknowledginglandfill operation as a traditional government function, the court agreedthat there was a question of whether the landfill was a proprietary functionbased on the municipalitys accepting out-of-county waste in its landfilland transferring profit from the landfill to other municipal uses.105 Thecourt remanded the case back to the trial court for a determination ofwhether [the] defendants operation of the landfill was subject to theproprietary function exception to government immunity.106

Coleman v. Kootsillas demonstrates how municipalities can be subject toliability for projects larger in scope and more costly than their income fromtaxes or fees.107 Additionally, the case demonstrates how using profits fromone activity to support another can subject a municipality to liability. 108 In

Coleman, the Michigan Supreme Court held that the proprietary functionexception applied to a vast and lucrative landfill beyond what thatmunicipalitys community could support either through taxes or fees.109In addressing the first element of the proprietary function testwhetherthe primary purpose of the activity is to produce a profitthe courtreviewed whether a profit [was] actually generated and how the profitwas spent.110 Because the City used a substantial profit generated fromthe landfill in other City activities, the court held that the landfills purposewas to generate profit.111 The court held that the landfill satisfied thesecond element of the proprietary function testthe activity is notnormally supported by taxesbecause the operation was much biggerthan what the municipality could operate relying only on taxes and fees. 112

In an unpublished case,Jenkinsv.City of Detroit, the Michigan Court ofAppeals held that the purchase and sale of real estate by the City of Detroitwas not a proprietary function, overturning the trial courts finding that

103 Id. at 215.104 Id. at 216. Out-of-county waste has never been more than 13.2% of total waste. Id. at 215.105 Id. at 215, 222-23.106 Dextrom, 789 N.W.2d at 226.107 Coleman v. Kootsillas, 575 N.W.2d 527, 530-31 (Mich. 1998).108 See id. (finding that because the City was using the fees to fund other projects, they

opened themselves up to liability).109 Id. at 529-31.

110 Id. at 528-30.111 Id. at 530, 531 n.11.112 Id. at 529-30.


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such action was a proprietary function.113 Specifically, although the Cityappeared to earn revenue from property sales, the court found that theprimary purpose of a program, which allowed parties to buy back

previously owned property, was not for profit.114

The court noted that itwas not clear if the City really made a profit after paying property taxesand there was no proof whether the purchase price deposited in thegeneral fund was used for unrelated activities.115 Moreover, the court heldthat the proprietary function exception did not apply because urbandevelopment and stabilization of neighborhoods are the sorts of activitiesnormally funded through taxes.116

Jenkins is instructive for Detroit, and similarly situated municipalities,to help avoid liability based on the Citys expanded real estatedevelopment program.117 First, municipalities should use any profits madefrom property sales only for real estate and neighborhood developmentpurposes to help protect their activities from the profit-purpose prong of

the test.118

Second, and more importantly, municipalities may run intoissues meeting the normally funded through taxes test because asignificant part of funding for Detroits development activities are comingfrom the Neighborhood Stabilization Program (NSP), which are not taxdollars produced by the municipality.119 Although the use of NSP fundsprovides for more projects than current tax income allows, Detroit shoulduse the NSP funds as it would normally use tax income to help keep its realestate activities under the government function umbrella.120

1. The Neighborhood Stabilization Program Could Supportan Argument of Proprietary Function Because DetroitDoes Not Need to Rely Solely On its Tax Base for Funding.

In 2008, Congress created the NSP to help cities, counties and statesdeal with community problems that are the result of the mortgageforeclosure crisis in the nation.121 Detroit received approximately forty-

113 Jenkins v. City of Detroit, Nos. 215116, 215117, 215118, 2001 WL 1388386, at *2-4 (Mich.

Ct. App. Nov. 6, 2001).114 Seeid. at *3.115 Id.116 Id. at *4.117 Id. at *3-4 (explaining how the organization of Detroits real estate program did not fit

the proprietary exception to governmental inventory).118 See id. at *3.

119 Jenkins, 2001 WL 1388386, at *4; DETROIT NSPPLAN, supra note 22, at 3.120 Cf. Coleman v. Kootsillas, 575 N.W.2d 527, 530-31 & n.11 (Mich. 1998).121About NSP and the NSP Resource Exchange, NEIGHBORHOOD STABILIZATION PLAN RES.


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seven million dollars under the NSP.122 Of those funds, the City allocatedalmost fourteen million to rehabilitation, and the remainder to acquisition,administration, demolition, disposition, new construction, and public

improvements.123

The City created The Detroit Land Bank Authority, a landbank to perform the acquisition, disposition, and management of theproperties.124 The Detroit Land Bank Authority was created in 2008pursuant to Land Bank Fast Track Legislation in Michigan, which allowedcities to create a land bank and permitted expedited quiet title proceedingsfor properties owned by the land bank.125 Additionally, the City grantedthe land bank authority to sell the properties for reuse in the communityafter a quiet title action, which provides clear title and eliminates concernsof past claims against the new purchaser.126

Creating a land bank helps municipalities ensure that any profitsearned through real estate activities are used for other real estateactivities.127 Municipalities should require income from property sales to

run through a land bank and only be used for community development tolimit the risk of courts finding a for-profit function. 128 In Detroit, theagreement creating the land bank requires all proceeds earned fromproperty sales to be used for land bank activities.129

The land bank should perform cost-benefit analysis between protectingagainst liability and earning a profit.130 If the land bank resells a house at ahigher price than the cost to acquire and update the property, it may besubject to liability for actions involved in the redevelopment and sale. 131

EXCHANGE, http://hudnsphelp.info/index.cfm?do=viewAbout (last visited Apr. 18, 2013).122 DETROIT NSPPLAN, supra note 22, at 32.123 Id.124 Id. at 33.125 Id. at 9.126 See What Is the Neighborhood Stabilization Program, DETROIT NSP: NEIGHBORHOOD

STABILIZATION PROGRAM DETROIT LAND BANK AUTHORITY, http://detroitlandbank.org (last

visited Apr.18, 2013) [hereinafter What is the NSP?] (accessed through Detroit NSP

hyperlink) (advertising fully renovated DLBA NSP homes).127 See Jenkins v. City of Detroit, Nos. 215116, 215117, 215118, 2001 WL 1388386, at *3

(Mich. Ct. App. Nov. 6, 2001); U.S.DEPT OF HOUS.&URBAN DEV.,supra note 79, at 3-4.128 See DETROIT NSPPLAN, supra note 22, at 9 (noting that a land bank will be created and

funds will be used for purposes of property managementnot as profit for the municipality).129 See MICH.LAND BANK FAST TRACK AUTH.,BIENNIAL REPORT:FISCAL YEARS 2009

AND 2010 5 (n.d), available at http://michigan.gov/documents/treasury/Biennial_Report_2009-

_2010_2_367846_7.pdf.

130 See Coleman v. Kootsillas, 575 N.W.2d 527, 529 (Mich. 1998) (explaining that when astate municipality earns a profit it can be liable for tortious conduct).

131 See id. at 529-30.


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However, if the land bank has the potential to profit from these activities,the risk may be worth the reward.132 At a minimum, the land bank shouldmake sure these profits are used for other real estate redevelopment

activities performed by the land bank.133

As inJenkins, using profits for self-sufficiency of that particular activity is the safest way to protect fromliability.134

Because NSP funds can be included with taxpayer dollars for landbank activities, municipalities should recognize that part of the primaryprofit prong of the proprietary function test considers whether activitiesare generally paid with taxesspecifically whether activities are typicallypaid with taxes, not actually paid with taxes.135 Although the court inJenkins stated, urban development and stabilization of neighborhoods arethe sorts of activities normally funded through taxes, there are portions ofthe current neighborhood stabilization that are not normally fundedthrough taxes.136 For example, the municipality should be especially careful

when marketing and selling properties, acting as a landlord, or performingdemolition.137 These exclusions are especially important because Michigancourts noted that a proprietary function could be recognized within agreater governmental function.138 Therefore, the municipality could be heldliable for those nontraditional governmental functionseven if themunicipality has immunity for other portions of the developmentactivities.139

Additionally, Detroit is offering land-bank properties to nonresidentsof the City.140 Selling property to nonresidents is probably not supported

132 See Review Team to Examine Detroit Finances, supra note 2 (discussing the City of Detroits

lack of funding and budget deficit).133 Jenkins v. City of Detroit, Nos. 215116, 215117, 215118, 2001 WL 1388386, at *3 (Mich.

App. Ct. Nov. 6, 2001).134 See id.135 Coleman, 575 N.W.2d at 530-31 & n.10.136 CompareJenkins, 2001 WL 1388386, at *4 (holding that the municipalitys purchase and

sale of real estate constituted governmental activities), with Virginia Elec. & Power Co. v.

Hampton Redevelopment & Hous. Auth., 225 S.E.2d 364, 369 (Va. 1976) (concluding that the

municipalitys actions in operating a housing facility were essentially the same as a private

landlord).137 18A MCQUILLIN,THE LAW OF MUNICIPAL CORPORATIONS 53:116 (3d ed. rev. vol. 2012).138 Carlisi v. City of Marysville, 128 N.W.2d 477, 483 (Mich. 1964) (finding that because the

City was acting as a private possessor of the land in question, the City assumed the duties

normally imposed by law).139 See id.140 See generallyWhat is the NSP?, supra note 126.


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by taxes because those buyers have not previously paid city taxes.141Arguably, this type of sales activity qualifies as a proprietary function.142 InColeman, the court allowed liability against the waste treatment facility

because it accepted wasteand incomefrom out-of-town parties.143

Similarly, the land bank is accepting income from out-of-town buyers.144Because the injured party in Coleman was a resident of the municipality, itfollows that any buyer of land-bank properties could argue that the landbank and city are liable for damages caused by negligent property sales;thus, municipalities should maintain control over their property sales toreduce negligence.145

2. Municipal Activities Could Create Additional Liability in aLess Protective Legal Atmosphere.

The proprietary function test wavered over the years in Michigancourts; it is possible that judges in future cases could restructure the test

and look to other jurisdictions in deciding such a question.146

The currentMichigan decisions are protective of municipalities and focus on whetheran activitys purpose is for profit and generally supported by taxes.147 InNorth Carolina however, the courts adopted a totality of the circumstancestest.148 That test is: (1) whether the local government provides this function;(2) whether the function is exclusively provided by the local government;(3) whether the local government charges a substantial fee; and (4) whetherthe fee generates a profit.149 Not all of these factors must be present for afunction to be proprietary, but the second of these considerations is the

141 Cf.id.142 See generally Coleman v. Kootsillas, 575 N.W.2d 527, 530-31 (Mich. 1998) (noting that the

landfill was ultimately deemed a proprietary function because it generated funds by charging

out-of-town users).143 See id.144 See id.; What is the NSP?, supra note 126 (noting that under the requirements for

participation, it is not necessary to be a Detroit resident to purchase a home).145 See Coleman, 575 N.W.2d at 529-31.146 Compare Matthews v. City of Detroit, 289 N.W. 115, 117 (Mich. 1939) (finding an

exception to immunity when an activity that is commercial in character is voluntarily

undertaken for profit), with Ward v. Mich. State Univ. (On Remand), 782 N.W.2d 514, 520

(Mich. Ct. App. 2010) (requiring the activitys purpose be for profit and operate

independently of taxes).147 SeeWard, 782 N.W.2d at 520.148 See Vaughn v. Durham Cnty., 240 S.E.2d 456, 459 (N.C. Ct. App. 1977) (finding that

providing foster care was a governmental function under a totality of the circumstances test).149 Estate of Williams v. Pasquotank Cnty. Parks & Recreation Dept, 711 S.E.2d 450, 453

(N.C. Ct. App. 2011), revd, 718 S.E.2d 381 (N.C. 2011).


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most important.150

To firmly qualify as a government function, the land bank should notcharge a fee for its services.151 Because any corporation or individual could

act as a property buyer and seller, the court may find that any servicecharge is a proprietary function.152 Although the land bank has moregovernmental powers to acquire properties than an individual does, thefunction of buying and selling real estate is not unique to a municipality.153

Additionally, although legislation enabling the land bank promotes apublic purpose, the enabling legislation is not controlling in the proprietaryfunction analysis.154 In Virginia Electric and Power Co. v. HamptonRedevelopment and Housing Authority, the Supreme Court of Virginia lookedbeyond the enabling legislation to the true nature of the activity; it foundthat a municipal housing authority was not entitled to immunity fromnegligent operation and maintenance of a housing project because theauthority was performing a proprietary function.155 Although the enabling

statute declared that providing safe and sanitary dwellingaccommodations for persons of low income are public uses . . . and . . .governmental functions of grave concern to the Commonwealth, theCourt construed the language as only providing justification for the use ofpublic fundsand not immunity from tort liability.156 The court thenreviewed the true nature of the functions, and found that the authorityacted as a private landlord.157 The housing authoritys operation andmaintenance qualified as a proprietary function because it operated as aquasi-private enterprise and did not provide a public benefit.158

B. Detroits Property Ownership and Development Activity Can CreateLiability Through Government-Immunity Exceptions.

Municipal property ownership can also create liability for government

150 Id.151 See Dextrom v. Wexford Cnty., 789 N.W.2d 211, 226 (Mich. Ct. App. 2010).152 See Va. Elec. & Power Co. v. Hampton Redevelopment & Hous. Auth., 225 S.E.2d 364,

368 (Va. 1976) (noting that governments can subject themselves to liability when performing

actions typically taken by private parties).153 See generallyid. at 369 (holding the municipalitys actions in operating a housing facility

were essentially the same as a private landlord).154 Id. at 367-69; Dohm v. Twp. of Acme, 93 N.W.2d 323, 328 (Mich. 1958).155 Va. Elec. & Power Co., 225 S.E.2d at 367-69.

156 Id. at 368 (citing VA.CODE ANN. 36-2(1) (1942)).157 Id. at368-69.158 Id. at 369.


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actions.159 Michigan recognizes the public building exception for buildingsowned by municipalities and open to the public.160 Additionally, Michigancourts recognize inverse condemnation claims through the Takings

Clause.161

Because Takings Clause claims are not torts, the GovernmentalTort Liability Act does not shield inverse condemnation claims.162 There isalso a risk that new justices to the Michigan Supreme Court could be lessfavorable to municipalities, allowing additional claims of liability in thefuture.163

1. Injuries at Municipally-Owned Properties Could CreateLiability Through the Public Building Exception.

The public building exception to municipal immunity allows liabilityfor damages that occur at government owned property.164 Under thisexception, immunity is not applicable for injuries caused by a buildingdefect or condition: (1) occurring in a building under the governments

ownership and control; (2) occurring in a building that is open for use bythe public; (3) known or which should be known by the municipality; and(4) not being corrected by the municipality.165 The public buildingimmunity exception is based on public accessibility, not the actual use ofthe building.166 The building does not need to be open to the general public;limited public access is sufficient for the public access test. 167 Because thegovernments sale and marketing of property to private parties couldqualify as property open to the public, the government entity handling thesale should obtain liability waivers from invitees when showing propertyfor sale to avoid liability within the public building exception.168

159 Seeinfra Part III.B.160 MICH.COMP.LAWS ANN. 691.1406 (West 2012).161 Merkur Steel Supply, Inc. v. City of Detroit, 680 N.W.2d 485, 495 (Mich. Ct. App. 2004)

(citing In re Acquisition of Land-Va. Park, 328 N.W.2d 602, 604-05 (Mich. Ct. App. 1982)).162 MICH.COMP.LAWS ANN. 691.1407(1) (West 2012); Pennoyer v. Saginaw, 8 Mich. 534,

534-35 (1860) (finding liability against the City of Saginaw for flooding on plaintiffs property

caused by drainage ditch run-off).163 Seeinfra Part III.B.4.164 MICH.COMP.LAWS ANN. 691.1406 (West 2012).165 Id.166 Brown v. Genesee Cnty. Bd. of Commrs, 564 N.W.2d 125, 127 (Mich. Ct. App. 1997)

([T]he focus of the . . . [c]ourts inquiry is on the accessibility [of the accident site] to

members of the general public, rather than on the extent to which the building might benefit

the community.) (alternation in original) (citation omitted) quoting Steele v. Dep't of Corrs.,

546 N.W.2d 725, 728 (Mich. Ct. App. 1996)).167 Kerbersky v. N. Mich. Univ., 582 N.W.2d 828, 832 (Mich. 1998).168 See MICH.COMP.LAWS ANN. 691.1413 (West 2012); infra Part III.B.1.


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a. Government Ownership and Control

Under the public building exception, defective structures owned by amunicipality can subject it to liability for injuries caused by the structure.169This could be especially applicable to buildings listed for sale.170 Once amunicipality acquires a property, it falls under the municipalitysownership and control.171 The land bank would be an extension of themunicipality.172

b. Marketing Buildings for Sale Could be ConsideredBuildings Open to the Public.

A propertys accessibility determines whether the building meets thedefinition for public use under the public building exception.173 The landbank was created to buy and sell property.174 When an officer or agent forthe land bank shows properties for sale, the admission of the public couldmeet this test.175 If an injury occurs while the building is open to at least ageneral group of the public, this portion of the test is met; therefore, theland bank should remediate defects before walking the public through abuilding with potential hazards and oversee their open houses andshowings to avoid claims.176

Furthermore, vacant or dilapidated buildings not properly securedcould be considered open for public use depending on the characteristics ofthe open area.177 If the public has any reason to visit a dilapidated building,such as a property showing or open house, and was injured due to itsneglected condition, the public presenceeven if only outside of thestructurecould meet the test for public accessibility.178 The Michigan

169 Seesupra text accompanying notes 63-64.170 SeeKerbersky, 582 N.W.2d at 831-32.171 See DETROIT NSPPLAN, supra note 22, at 7-9.172 Seeid. at 7, 9.173 Brown v. Genesee Cnty. Bd. of Commrs., 564 N.W.2d 125, 127 (Mich. Ct. App. 1997).174 DETROIT NSPPLAN, supra note 22, at 7, 9.175 See Kerbersky, 582 N.W.2d at 832-33 (holding that the public building exception applied

when government building access was limited only to members of a theater group).176 Cf. Maskery v. Bd. of Regents of Univ. of Mich., 664 N.W.2d 165, 170 (Mich. 2003)

(holding that a dormitory that only admitted persons who were qualified on the basis of

individualized, limiting criteria was not open to the public for the purposes of the public

building exception).177 Cf. Kerbersky, 582 N.W.2d at 831-33 (agreeing that access to a government building

through broken lattice was not within the public building exception because the remainder ofthe window was bricked closed).

178 Seeid.


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Court of Appeals held that public access could be found even when abuilding was closed to the public because the public was still allowed to bein the exterior area of the building during closed hours.179

If the land bank lists a building for sale or rent, a claimant could arguethat he or she had a privilege to be on the property to view the building inmore detaileven if that person was not allowed inside the building.180The court in Kerbersky v. Northern Michigan University clarifies that abuilding may be open for use by members of the public even where alocation within the building is restricted from public use.181 The court inTellin v.Forsyth Township expands on Kerbersky and allows exterior areas tobe open to the public even when the building is closed to all of thepublic.182 Accordingly, a claimant could argue that an injury on theproperty surrounding a government building listed for sale is open to thepublic even when no showings are currently taking place and even if theclaimant is not there as an interested purchaser.183 It would be more

difficult for a claimant to succeed in arguing that the inside of the boarded-up building was open for public use, even if the buildings protection wasinsufficient.184 Nevertheless, the municipality should post no trespassingsigns on owned vacant buildings to make clear that the properties are notopen to the public and take steps to reduce hazards on the exterior ofowned properties to reduce potential liability.185

c. Oversight of Vacant and Dilapidated Buildings CouldCreate an Inference of Government Knowledge of Defects.

A municipality could be charged several ways with knowledge of adefect or dangerous condition in government-owned property.186 If anagent for a land bank shows a property for sale, the agent should be aware

of visible dangerous conditions at the property.187

The Michigan Court of

179 Tellin v. Forsyth Twp., 806 N.W.2d 359, 370 (Mich. Ct. App. 2011).180 See Maskery, 664 N.W.2d at 170.181 Id. at 169 n.9 (citing Kerbersky, 582 N.W.2d at 832).182 Tellin, 806 N.W.2d at 370.183 Cf. id. (allowing a claimants case to proceed even though the claimant was not on the

property for reasons that public access was permitted, i.e., the use of the buildings drop box).184 See id. at 369 (discussing how buildings closed completely for renovations are closed to

the public under the public building test).185 See MICH. COMP. LAWS ANN. 691.1413 (West 2012) (showing that a governmental

agency shall not be liable for injury arising out of the operation of proprietary function of the

government); see supra Part III.B.1.186 See Ali v. City of Detroit, 554 N.W.2d 384, 387 (Mich. Ct. App. 1996).187 E.g., Bob Hunt,Agent Visual Inspection Form Will Probably Change


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Appeals held that knowledge of a defective condition satisfies actual orconstructive notice.188 Constructive notice exists when a reasonableinspection would discover the defect.189 Accordingly, if conducting a visual

inspection is reasonable under the circumstances, the municipality could becharged with constructive notice of a defect even if an inspection did notoccur.190

Moreover, dangerous building laws and initiatives could support aclaimants argument that the municipality knew of defects in government-owned buildings because information about dangerous properties has beencompiled for Detroit.191 Michigan enacted legislation making it unlawful tokeep or maintain a dangerous building.192 Property reports and maps areavailable to pinpoint dangerous properties in Detroit.193 Although breachesof this requirement do not create municipal liability under currentMichigan law, the claimant could use evidence of a breach to proveknowledge of the defect.194 Under the dangerous building provisions, a

building that is not structurally sound due to neglect or abandonment, ordoes not meet minimum building codes, is a dangerous building. 195

Because information is available and monitored by community groups,Detroit could be found to have constructive notice of defects or dangerousconditions in government-owned property.196 Additionally, the City couldbe found to have actual knowledge of a defect if an unsolicited tipregarding the condition is sent to the it.197 Moreover, even if the City didnot inspect the property or get a tip about the condition, knowledge of the

Practices, REALTYTIMES.COM (May 15, 2007), http://realtytimes.com/rtpages/20070515agent

visual.htm (noting that many real estate agents should perform visual inspections of a

property, even if not required by law).

188 Ali, 554 N.W.2d at 387.189 See id. (finding that constructive notice was applicable based on expert testimony that

regular maintenance and inspection of the bus shelter would have led to the discovery of the

defect).190 See id.191About the Survey, DETROITRESIDENTIALPARCELSURVEY, http://www.detroitparce

lsurvey.org/interior.php?nav=aboutsurvey (last visited Apr. 18, 2013).192 MICH.COMP.LAWS ANN. 125.538 (West 2012).193 DATA DRIVEN DETROIT, DETROIT RESIDENTIAL PARCEL SURVEY CITYWIDE REPORT FOR

VACANT,OPEN AND DANGEROUS AND FIRE (2010), available at http://www.detroitparcel

survey.org/pdf/reports/DRPS_citywide_VOD_fire.pdf.194 See Pohutski v. City of Allen Park, 641 N.W.2d 219, 226, 237 (Mich. 2002).195 125.539(b).

196 Ali v. City of Detroit, 554 N.W.2d 384, 387 (Mich. Ct. App. 1996).197 Tellin v. Forsyth Twp., 806 N.W.2d 359, 370 (Mich. Ct. App. 2011) (holding that a

volunteers lay opinion that a support beam was loose was actual knowledge of the defect).


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condition can still be found.198 If a defect exists so that it is readilyapparent to an ordinary observant person for a period of 90 days or longerbefore the injury [takes] place, knowledge of the dangerous condition is

conclusively presumed.199

Detroit officials should monitor dangerousproperty reports and conduct drive-bys of owned properties so that themunicipality can repair or remove any visible hazards to reduce liabilityclaims.200

d. Failure to Remedy Defects Can Create Liability.

Lastly, once the governmental entity owning the building knows of adefect, it can be liable for injury if it has not begun remedial maintenance atthe time of the injury.201 Accordingly, Detroits ownership of property,directly or through its land bank, can create liability for injuries on thatproperty caused by a defective condition if the city knew and did nothingto remedy the it.202 Because liability can be found regardless of whether the

City is acting in a governmental or proprietary function, Detroit shouldtake care to determine where defects exist and remedy them, or limit entryonto the property, to avoid private party injury and liability.203

2. Encouraging Right-Sizing of Certain Areas Could CreateInverse Condemnation Claims in the Derelict Areas of theCity.

Municipalities are also subject to liability for injury to private propertyif the owner can prove an inverse condemnation case.204 Inversecondemnation is based on a governmental entity that has taken theowners property without bringing formal condemnation proceedings.205Moreover, inverse condemnation can occur where a municipality causes

damage to private property through a public improvement, public activity,or ownership of adjacent property.206 To prove inverse condemnation, aclaimant must prove: (1) that the governments actions were a substantial

198 See 691.1406.199 Id.200 See, e.g., Vacant and Dangerous Buildings, CITY OF YPSILANTI, http://cityofypsilanti.com

/Government/Departments/BuildingDepartment/VacantDangerousBuildings (last visited Mar.

28, 2013).201 Tellin, 806 N.W.2d at 368.202 691.1406.203 See id.; Kerbersky v. N. Mich. Univ., 582 N.W.2d 828, 830 (Mich. 1998).

204 Merkur Steel Supply, Inc. v. City of Detroit , 680 N.W.2d 485, 495 (Mich. Ct. App. 2004).205 BLACKS LAW DICTIONARY 332 (9th ed. 2009).206 See Merkur Steel Supply Inc., 680 N.W.2d at 494.


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cause of the decline of his propertys value. . . . [and (2)] the governmentabused its legitimate powers in affirmative actions directly aimed at theplaintiffs property.207

Cities establishing a widespread urban renewal program like Detroitshould not focus on a particular area of the city to the detriment of privateproperty owners in that area.208 In Heinrich v.City of Detroit, the property-owner plaintiff alleged inverse condemnation due to an urbanredevelopment plan surrounding Wayne State University.209 The plaintiffscommercial property was located within a district labeled for recreationaluse in the new plan.210 The city held meetings about the redevelopment in1962 and corresponded with the owner and his commercial tenants, whichled the parties to believe the city would acquire the building in the mid- tolate 1960s.211 The tenant moved out in 1967 and the owner was unable tolease the building again.212 The redevelopment project in the plaintiffs areawas discontinued due to lack of funding, and the property was later

acquired by the city through tax foreclosure in 1973.213

However, the plaintiffs claim failed because he did not sufficientlyprove causation between the Citys actions and his loss of rent andprofits.214 The plaintiff failed to prove that the governments actions werea substantial cause of the decline of his propertys value; he could nietherprove that his tenant would have stayed, nor that another tenant wouldhave leased the property, but for the urban development plan. 215 The courtcited Detroits 1967 riots as the main cause of the losses.216 Additionally, theCitys contacts with the property owner and his tenant were not soegregious as to constitute an abuse of its eminent domain power.217However, the court indicated that a delay in condemnation to reduceproperty values is an abuse of power.218

Municipalities, like Detroit, that target specific areas for condemnation

207 Heinrich v. City of Detroit, 282 N.W.2d 448, 451-52 (Mich. Ct. App. 1979) (citing

Holloway Citizens Comm. v. Cnty. of Genesee, 196 N.W.2d 484, 486 (Mich. Ct. App. 1972)).208 See id.209 Id. at 449.210 Id.211 Id. at 449-50.212 Id. at 450.213 Heinrich, 282 N.W.2d at 450.214 Id. at 450.215 Id. at 451-52.

216 Id. at 451.217 Id. at 452.218 See id.


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should avoid contributing to declining values in those areas if at allpossible.219 For example, the Detroit NSP committee specified areas of theCity for acquisition, demolition, or financing programs to encourage the

public to purchase in that area.220

In the subsection of Brightmoor, theDetroit NSP committee did not find viable potential for growth, andtherefore targeted Brightmoor for property acquisition and demolition.221Like the plaintiff in Heinrich, a property owner in Brightmoor could bringan inverse condemnation claim against the City of Detroit and obtaindamages if the owner could prove that Detroits emphasis on Brightmoorsunlikely revitalization substantially caused the owners decline in propertyvalue.222 The court in Heinrich did not find the citys condemnation ofproperties in the plaintiffs area to be a substantial cause of the propertyvalue declining, but instead attributed the loss in property value to themass riots affecting the area during that timeframe.223 The 1967 riots causedextensive damage to the city including the looting and burning of 2,509

buildings; in the aftermath of the riots, a journalist dubbed Detroit asAmericas first major Third World city.224 Although there are no majorriots or other substantial incidents presently, Detroit should still factor inthe potential cost for inverse condemnation claims if it continues with itseffort to effectively shut down less viable portions of the citysuch asBrightmoor.225

Furthermore, modifications to government property that damageneighboring properties can constitute inverse condemnation.226 Forexample, Detroit targeted Brightmoor for [b]road demolition to clear andassemble land for alternative uses such as industrial or green space.227 It ispossible that creating an industrial area close to a residential area couldcreate potential liability and environmental concerns for the City.228 InAllen

219 See DETROIT NSPPLAN, supra note 22, at 7, 10.220 Id. at 63.221 Id. at 7, 11.222 See Heinrich, 282 N.W.2d at 449-50.223 Id. at 452 (Evidence also showed that plaintiffs property was in or immediately

adjacent to one of the most severely damaged business areas during the 1967 riots, and that in

the aftermath of these civil disturbances, entire neighborhoods in the City of Detroit suffered

generally from loss of established businesses and vacant property.).224 SUGRUE,supra note 19, at 259, 270.225 Cf. Heinrich, 282 N.W.2d at 452.226 Allen v. City of Laingsburg, No. 286031, 2010 WL 539823, at *4 (Mich. Ct. App. Feb. 16,

2010) (modifying the municipality-owned propertys evaluation, which caused damage to the

neighboring property, provided cause for an inverse condemnation claim).227 DETROIT NSPPLAN, supra note 22, at 63.228 See, e.g., Allen, 2010 WL 539823, at *4; Atty Gen. v. Ankersen, 385 N.W.2d 658, 674-75


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v.City of Laingsburg, the court allowed a claim for inverse condemnation toproceed because the plaintiff alleged that the city took deliberate andaffirmative actions in modifying the elevations of its nearby land which

directly impacted the flow of storm water run-off so as to cause a portionof plaintiffs property to be permanently submerged in water and rendereduseless to him.229 A municipality avoids inverse condemnation claimswhen it abstains from direct actions that render private property uselesswhether due to water run-off or environmental contaminationotherwisethe injured party may be able to hold the municipality liable. 230

3. Government Acquisition of Private Property Can CauseLiability Without Proper Controls and Oversight onAcquisition Procedures.

Although property acquisition methods do not generally subjectmunicipalities to liability, improper acquisitions can create legal challenges

and reversions in property ownership to the private party.231

The primarymethod of acquisition by municipalities has been tax foreclosures.232 InMichigan, a municipality may purchase property by forcing a tax auctionforeclosure sale.233 However, if the foreclosing entity files an impropernotice that does not meet constitutional requirements, a resulting taxforeclosure judgment violates the partys due process rights.234

To meet constitutional requirements for notice, the government mustonly provide notice reasonably calculated, under all the circumstances, toapprise interested parties of the pendency of the action and afford them anopportunity to present their objections.235 In effect, the government onlyneeds to send out notice through certified mail.236 If the notice is returned,the government need only send notice by first-class mail to the same

addressit does not need to ensure the address is current and that it

(Mich. Ct. App. 1986) (explaining how a city may be liable for allowing an industrial area to

be built near a residential area).229 Allen, 2010 WL 539823, at *4.230 See id.231 See, e.g., Sidun v. Wayne Cnty. Treasurer, 751 N.W.2d 453, 462-63 (Mich. 2008); Ligon v.

City of Detroit, 739 N.W.2d 900, 907-08 (Mich. Ct. App. 2007).232 U.S.DEPT OF HOUS.&URBAN DEV., supra note 79, at 2.233 MICH.COMP.LAWS ANN. 211.78m (West 2012).234 Republic Bank v. Genesee Cnty., 690 N.W.2d 917, 920 (Mich. 2005); Ligon, 739 N.W.2d at

904.

235 Jones v. Flowers, 547 U.S. 220, 226 (2006) (quoting Mullane v. Cent. Hanover Bank &Trust Co., 339 U.S. 306, 314 (1950)) (internal quotation marks omitted).

236 Seeid. at 234-35.


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reached the intended recipient.237 The United States Supreme Courtestablished this minimum notice standard, which Michigan follows.238

For cases involving improper notice, the legislature tried to limit the

remedy to damages, instead of rescinding the foreclosure judgment.239However, the Michigan Supreme Court vacated a foreclosure judgmentand restored a former owners property rights because the foreclosureprocess violated her right to due process, i.e., notice of the foreclosure saledid not meet constitutional requirements.240 Accordingly, a municipalityshould maintain controls for issuing notices of an impending foreclosure tomeet constitutional guidelines.241

In the event of a notice requirements violation, the foreclosure could berescinded after the municipality has spent money performing theforeclosure, and possibly even incurred costs for selling the property to athird party.242 Additionally, if the government performs any actions on theproperty after acquisition, such as demolition, the government can be liable

under inverse condemnation because this action qualifies as a taking of theproperty.243 Moreover, the municipality should strictly adhere to the noticerequirements in order to keep stability in their foreclosures.244 Suchstability would keep potential buyers from lowering their offering pricesbased on uncertainty in the legitimacy of the sale.245

4. The Trespass-Nuisance Exception

Michigan and other states do not currently recognize the trespass-nuisance exception to municipal immunity for tort claims, althoughMichigan did before 2002.246 Other states currently allow liability for

237 See id. at 244.238 Id.; see Sidun v. Wayne Cnty. Treasurer, 751 N.W.2d 453, 462 (Mich. 2008)

(acknowledging that Michigan follows the minimum requirements in Jones to provide notice,

plus requires the notifying entity to send notice to all addresses available from the propertys

tax bills and recorded deeds).239 Sidun, 751 N.W.2d at 462 n.7.240 Id. at 462-63; Wayne Cnty. Treasurer v. Perfecting Church, 732 N.W.2d 458, 463 (Mich.

2007).241 SeeSidun, 751 N.W.2d at 462-63.242 Seeid.243 Ligon v. City of Detroit, 739 N.W.2d 900, 907-08 (Mich. Ct. App. 2007).244 See Sidun, 751 N.W.2d at 462-63.245 See Sam DeBord, Foreclosures, Bank-Owned Homes, and Short Sales: Dont Believe the Big

Discounts, SEATTLE PI (Nov. 3, 2011, 7:04 AM), http://blog.seattlepi.com/seattlewaterfront

homes/2011/11/03/foreclosures-bank-owned-homes-and-short-sales-dont-believe-the-big-discounts/.

246 E.g., Morrissey v. New Eng. Deaconness Assn., 940 N.E.2d 391, 401 (Mass. 2010)


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actions that create or maintain a nuisance.247 Generally for the trespass-nuisance exception to apply, the municipality will need actual orconstructive notice of the nuisance.248 For example, Georgia requires that

the claimant prove: (1) the occurrence of the defect is beyond merenegligence; (2) the defect was continuous, repetitious, or existed for sometime; and (3) the city failed to remedy the defect within a reasonable timeafter knowing of it.249 In even more protective states, municipal liability islimited to situations where the municipality not only knew about thenuisance, but also took some overt act towards creating the nuisance.250

Michigan previously recognized the trespass-nuisance exception and,until 2002, did not consider the Governmental Tort Liability Act (GLTA)to limit trespass-nuisance liability.251 It is possible that future courts couldonce again interpret the GLTA to allow tort claims against municipalitiesbased on common-law actions, as was the case between 1967 and 2002.252 IfMichigan again recognizes the trespass-nuisance exception to immunity,

municipalities could be held liable for governmental nuisances thattrespass and cause damage to private property.253

The 2002 decision, Pohutskiv.Allen Park,which abrogated the trespass-nuisance exception and all other common-law exceptions to immunityagainst municipalities, has been questioned the by court.254 The author ofthe dissent in Pohutski, Justice Marilyn Kelly, wrote that the majoritysrationale for overruling the well-reasoned precedent of the courtsinterpretations of the GTLA is that it brings the statutes construction

(interpreting a 1993 statute to bar nuisance liability against municipalities); see also Pohutski v.

City of Allen Park, 641 N.W.2d 219, 227, 229 (Mich. 2002).247 See, e.g., Prifty v. City of Waterbury, 54 A.2d 260, 261-62 (Conn. 1947); Paduch v. City of

Johnson City, 896 S.W.2d 767, 772 (Tenn. 1995); Bible Baptist Church v. City of Cleburne, 848

S.W.2d 826, 829 (Tex. Ct. App. 1993).248 City of St. Petersburg v. Collom, 419 So. 2d 1082, 1086 (Fla. 1982) (finding liability

where a municipality knew of a dangerous condition that was not readily apparent and did

not warn the public); Cobbley v. City of Challis, 139 P.3d 732, 736 (Idaho 2006).249 City of Vidalia v. Brown, 516 S.E.2d 851, 854 (Ga. Ct. App. 1999).250 E.g., Gaines v. Vill. of Wyoming, 72 N.E.2d 369, 372-73 (Ohio 1947); Taylor v. City of

Charlottesville, 397 S.E.2d 832, 836 (Va. 1990).251 See MICH.COMP.LAWS ANN. 691.1401-19 (West 2012); Pennoyer v. Saginaw, 8 Mich.

534, 534 (1860) (finding liability against the City of Saginaw for flooding on plaintiffs

property caused by drainage ditch run-off).252 Pohutski v. City of Allen Park, 641 N.W.2d 219, 226-27 (Mich. 2002).253 Pennoyer, 8 Mich. at 534.

254 Lessard v. City of Allen Park, 372 F. Supp. 2d 1007, 1010 n.4 (E.D. Mich. 2005) (arguing

that abrogating common-law exceptions to immunity was improper because the Michigan

Supreme Court misinterpreted legislative intent).


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closer to the Legislatures intent. I find this patently inaccurate.255 JusticeKelly also states that the trespass-nuisance doctrine is grounded in theConstitutions Takings Clause and therefore cannot be abrogated by a

legislature, even if the legislatures intent was to abrogate the doctrine.256

Additionally, the Pohutski decision questions the stability of the courts

broad immunity interpretation.257 Justice Kelly ended her dissent asfollows:

But what must be apparent to all, when the rhetoric is stripped ofits gloss, is that this Court is again ignoring its own past rulings.And, if each successive Court, believing its reading is correct andpast readings wrong, rejects precedent, then the law willfluctuate from year to year, rendering our jurisprudencedangerously unstable.258

Michigan Supreme Court justices only serve eight-year terms.259 Asjustices are replaced, the interpretations of government immunity can

change.260

Since the Pohutski decision, only two justices of the majorityremain on the bench.261 Accordingly, it is very possible that the court couldrevise the Pohutski holding and allow common-law exceptions to immunityto apply in future cases.262 Detroit should monitor trespass-nuisance casesentering the Michigan Supreme Court in order to maintain controls onpotential liability for defects that Detroit should have otherwise knownand remedied.263

CONCLUSION

There are many cities similarly situated as Detroit with large quantitiesof vacant buildings and parcels.264 Although Michigan law favors

255 Pohutski, 641 N.W.2d at 235 (Mich. 2002) (Kelly, J., dissenting). Justice Michael

Cavanagh concurred with the dissent. Id. at 240.256 Id. at 239.257 Id. at 240.258 Id.259 The Michigan Supreme Court History Timeline: 1950-Present, MICHIGAN SUPREME COURT

HISTORICAL SOCIETY,

http://www.micourthistory.org/history-timeline/ (last visited Apr. 18, 2013).260 See Pohutski, 641 N.W.2d at 240 (Kelly, J., dissenting).261 CompareMichigan Supreme Court Justices, MICHIGAN COURTS, http://www.courts.

michigan.gov/courts/michigansupremecourt/justices/pages/default.aspx (last visited Apr. 20,

2013), withPohutski, 641 N.W.2d at 224, 234.

262 See Pohutski, 641 N.W.2d at 240 (Kelly, J., dissenting).263 Seesupra Part III.B.4.264 U.S. CONFERENCE OF MAYORS, COMBATING PROBLEMS OF VACANT AND ABANDONED


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municipal immunity, Detroit can still be liable for its actions. 265 However,there are steps that Detroit and other municipalities can take to protectthemselves from liability.266

Municipalities should create land banks, if not already in existence,which should only use profits from selling property for maintenance orrenovation of other properties.267 The use of profits for the self-sufficiencyof a governmental activity is the safest way to protect the activity frombeing considered a proprietary function.268 Land banks should obtainwaivers from invitees when showing property for sale because openingthose properties to the public could cause those properties to fall within thepublic-building exception.269 Moreover, the municipality should post notrespassing signs on owned vacant buildings; the clearer the municipalitycommunicates that the properties are not open to the public, the less likelyinjuries thereon would fall within the public-building exception.270

In order to protect efforts to right-size the city into the most viable

areas from an inverse condemnation claim, the city should set internalrules for eminent domain to calculate the market value as of the date thatthe right-sizing plan went into effect, and keep municipal commentsabout moving population out of any certain area to a minimum. Theseefforts should at least reduce a partys chance of claiming that themunicipalitys actions substantially caused a decline in property value, andthat the government abused its legitimate powers in affirmative actionsdirectly aimed at the plaintiffs property.271

Additionally, Detroit should make sure that the foreclosing entity in atax sale follows strict procedures for issuing notices to parties inforeclosure, such as: checking all recorded documents and tax billaddresses for property owner contact information; mailing a certified letter

to each address found; and if the letter is returned, the notice should be

PROPERTIES:BEST PRACTICES IN 27CITIES 1 (2006), available at http://www.usmayors.org

/bestpractices/vacantproperties06.pdf.265 Seesupra Part III.266 Seeinfra text accompanying notes 268-74.267 Id.268 See Jenkins v. City of Detroit, Nos. 215116, 215117, 215118, 2001 WL 1388386, at *2

(Mich. Ct. App. Nov. 6, 2001).269 See supra Part III.B.1; see generally MICH.COMP.LAWS ANN. 691.1413 (West 2012).270 See supra notes 184-85 and accompanying text.

271 See Heinrich v. City of Detroit, 282 N.W.2d 448, 451-52 (Mich. Ct. App. 1979) (citing

Holloway Citizens Comm. v. Cnty. of Genesee, 196 N.W.2d 484, 486 (Mich. Ct. App. 1972));

supra Part III.B.2.


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sent by mail and posted physically on the property.272 Following all ofthese steps should preclude a due process violation for lack of notice. 273Lastly, although the trespass-nuisance exception is not currently

recognized in Michigan, governmental property owners should use carewhen renovating their property and perform periodic inspections to ensurethat conditions at the property do not harm adjacent prop

kroha: potholes in the motor city

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