Keeping Property Tax Values Capped Upon the Death of a Joint Tenant

Under Michigan law, a property’s taxable value is capped and may not increase by more than the rate of inflation until ownership of the property is transferred.

However, there are certain types of transfers of ownership that are exempt from this rule and will not cause an uncapping of the taxable value.  These no-transfer-of-ownership exemptions are listed in the General Property Tax Act, Section 211.27a(7).

One particular exemption that has been the subject of recent litigation in Michigan is set forth in Section 211.27a(7)(h). This exemption has to do with a transfer that creates or terminates a joint tenancy.  It has been widely assumed that the death of a joint tenant is considered a transfer that “uncaps” the taxable value of a property and is not exempt under Section 211.27a(7)(h).

However, in December 2009, the Michigan Court of Appeals reversed the decision of the the Michigan Tax Tribunal in the case of Klooster v City of Charlevoix, holding that the death of one joint tenant, even though it terminated the joint tenancy, was not a “conveyance” because there was no instrument that affected title.  In that case, husband and wife first acquired property, wife then quitclaimed to husband, husband then quitclaimed to himself and his son as joint tenants, and the husband/father subsequently died.  It is the death of the father as joint tenant that is the issue of the dispute.  The court disagreed with the City of Charlevoix and the Tax Tribunal’s contention that the death constituted a “transfer” under Michigan statutes.

Just this month, the Michigan Court of Appeals in Klevorn v. City of Boyne City, using Klooster as precedent and citing the similarity of the facts, held that the death of one joint tenant (mother) and the subsequent transfer the other joint tenant with rights of survivorship (son) was not a “conveyance”.  Therefore, the Court held that the property value upon transfer to the son should not have been uncapped and he was entitled to the no-transfer-of-ownership exemption in MCL 211.27a(7)(h).

The Klooster decision has been appealed to the Michigan Supreme Court.  In the meantime, there is precedent to argue that upon the death of a joint tenant, the remaining joint tenant with rights of survivorship is not subject to an uncapping of the property’s taxable value.

This article was written by Natalie C. Najarian, Associate at Demorest Law Firm.

So You Want to Buy a Bar…

If you’re looking to buy a business, there is a lot to know before you actually make an offer.  This is especially true if you’re looking to buy a business that owns a liquor license, such as a bar or restaurant.

Once you’ve found the bar that you want to buy, the first step is to sign a purchase agreement.  The purchase agreement should cover everything that you and the seller have agreed upon – purchase price, payment method (e.g. cash, promissory note, etc.), timing of various steps, all terms and conditions, default provisions, naming rights, etc.  (See our article on Merger Clauses for the importance of including everything in one document).  The purchase agreement should also provide a date for closing, which will not occur until after the liquor license is transferred.

Note that Michigan law requires that all liquor inventories be purchased in cash.  Therefore, if your purchase includes any type of financing (such as a promissory note or loan), the purchase of liquor inventory must be specifically excluded from the purchase agreement and must be done in cash at closing.

The purchase agreement should also include provisions about the liquor license, including the purchase price and a provision covering what will happen if the liquor license cannot be transferred.  This is because the license itself cannot be transferred just through a purchase agreement.  Rather, the purchaser has to apply to the Michigan Liquor Control Commission (“LCC”) to transfer the license.  The purchaser then must undergo a rigorous application process in order to be approved to buy the license.  This process can take months, so purchasers must be patient!

While the liquor license transfer is pending, you should conduct due diligence on the operations of the bar.  If you plan to keep the bar open continuously before and after the closing, you should plan accordingly for a seamless transition.  Once the liquor license transfer has been approved, you can hold a closing and complete the sale.

This article was written by Melissa L. Demorest, Associate at Demorest Law Firm.

Broadening the State Real Estate Transfer Tax

When real property is transferred in the state of Michigan, both state and county transfer taxes are assessed based on the purchase price of the property.  Transfer taxes are imposed when a deed transferred the ownership of land from one entity to another.  However, until recently, the transfer tax did not apply if the buyer simply bought the entity that owned the land.  This was perceived as a loophole for single-purpose real estate entities to avoid paying the transfer tax.

On January 9, 2009, the State Real Estate Transfer Tax Act (MCL 207.521, et seq.) was amended to impose the state real estate transfer tax (“SRETT”) on transfers of a “controlling interest” in an entity, if the entity has 90% or more of its value in real estate. “Controlling interest” is defined to include ownership of 80% of the stock of a corporation, or 80% of the membership interests of a limited liability company.

The amended Act includes the same exemptions as the original SRETT statute, but adds new exemptions for (i) transfers made to effectuate a dissolution of the corporation, limited liability company, partnership or trust, and (ii) transfers from an entity to another where the ownership remains the same.

The amendments do not apply to the county property transfer tax. Therefore, an entity purchase still does not trigger an obligation to pay the county transfer tax.

This article was written by Natalie C. Najarian, Associate at Demorest Law Firm.

Jackson v Estate of Green: The Effect of a Partition Action on a Joint Tenancy

Joint tenants hold equal and undivided interests in a parcel, with a right of survivorship. When a joint tenant dies, the deceased’s interest does not descend to heirs. Instead, the entire ownership remains in the surviving joint tenant or tenants.  This transfer occurs automatically upon the death of the joint tenant.

Michigan recognizes two types of joint tenancies:  (a) the standard form, which can be unilaterally severed; and (b) a joint tenancy with express words of survivorship in the granting instrument which cannot be unilaterally severed.

The recent Michigan Supreme Court of Jackson v Estate of Green, involved a dispute between two joint tenants, one of whom sought to partition the properties held by both joint tenants.  While the matter was pending before the Court, the joint tenant seeking a partition suddenly died.

The Michigan Supreme Court ruled that the joint tenancy at issue was a “standard joint tenancy” because the deed granting them a joint tenancy did not include express language identifying the parties as having a “joint tenancy with full rights of survivorship”.  As a result, the Court held that the joint tenancy could be severed by one of the parties without the consent of the others.  However, the Court also ruled that the severance occurred only upon a Court’s Order.  Merely filing a Complaint in Court did not sever the joint tenancy.  Therefore, the decedent’s estate had no interest in the subject property upon the decedent’s death.  Instead, the Court ruled that the title to the subject property vested in the surviving joint tenant immediately upon the other joint tenant’s death.

This case not only explains at what point in time a partition action severs a joint tenancy, but highlights the importance of using express words of survivorship in the granting instrument if the parties intend to secure their rights of survivorship.

This article was written by Natalie C. Najarian, Associate at Demorest Law Firm.

What Happens With Employer-Provided Housing When An Employee Is Fired Or Quits?

It is not uncommon for employers to provide housing to employees as part of their compensation package. This frequently occurs in the hospitality, multi-family housing, and construction industries. Employers must be wary when an employee is terminated or resigns, because complications can arise when the employer attempts to oust the former employee from company housing.  The employer cannot simply change the locks or physically remove the employee from the premises without a Court Order. The employer must follow the same standard eviction procedures used for other landlord-tenant cases.

If the employer does not follow standard eviction procedures, he or she could be liable for violating Michigan’s Anti-Lock Out Statute, which states that the wrongly evicted employee “shall be entitled to recover the amount of his actual damages or $200.00, whichever is greater, for each occurrence and, where possession has been lost, to recover possession.” In other words, the employer would be responsible for paying damages and giving the property back (at least until the correct eviction procedure has been followed).

To avoid this liability, the employer should provide the discharged or resigned employee with a notice to quit. If the former employee does not leave after the notice to quit is provided, then the next step is to file a complaint for possession of the premises in the local District Court.