BY HUNTER K. AVIS WITH RICHARD D. LINNELL
SPECIAL TO OAKLAND LAKEFRONT
Fall on Michigan’s inland lakes is a very special moment in time. For as fun as summer raft-offs and cookouts are, an empty lake, smattered with the reflections of vibrant fall tones on tree leaves may just be some of the most beautiful moments on the lake all year. Fall may represent change in recreation on the lake as well, with hunting being one of those uses.
Recently, we received a question about whether Michigan has any rules and regulations on the books regarding minimum distances from homes for safe waterfowl hunting and questions about the liabilities of a landowner in an area that is open to recreational uses and traffic.
To answer our first question, Michigan law creates “safety zones” for hunting within 450 feet from an occupied building, dwelling, house, residence or cabin, or any barn or other building used in connection with a farm operation, the hunter must obtain the written permission of the owner, renter, or occupant of the property. Note that landowner permission in this context is secondary to local laws, municipal ordinances, and any recorded deed restrictions regarding the subject of permission. As to our second question, this is an excellent segue to discuss recreational use protections in Michigan. A subsection of the “Recreation” chapter Natural Resources and Protection Act (“NREPA”) is Part 733: Liability of Landowners for Recreational Trespass (MCL 324.73301). In the Michigan common law, this is frequently referred to as the Recreational Use Act (“RUA”). The overall purpose of the RUA is to encourage owners of land to make their land and water areas available to the public for recreational purposes, by limiting the landowner’s liability toward public persons entering their property for such purposes.
The RUA states:
A cause of action does not arise for injuries to a person who is on the land of another without paying to the owner, tenant, or lessee of the land a valuable consideration for the purpose of fishing, hunting, trapping, camping, hiking, sightseeing, motorcycling, snowmobiling, or any other outdoor recreational use or trail use, with or without permission, against the owner, tenant, or lessee of the land unless the injuries were caused by the gross negligence or willful and wanton misconduct of the owner, tenant, or lessee.
Initially, in the 1950s, RUA offered landowners protection from those coming upon the land of another for fishing, hunting, and trapping. The range of protections was later expanded (on different occasions) to add camping, hiking, sightseeing, and the “any other outdoor recreational use” catch-all. As you might guess, the limits of the catchall provision have on more than one occasion, been the topic of Michigan Supreme Court debate. The Michigan Supreme Court reasoned that the catchall is limited to recreational uses of the same kind or nature as the specifically enumerated uses. The Supreme Court utilized a two-factor test to determine the kind and nature of use: whether the use is of a kind or type that cannot traditionally be engaged in indoors; and whether the activity requires anything more than access to the land to engage in. In other words, must the land have to be improved in some way to perform the activity.
Michigan riparian owners, then, enjoy a large degree of general protection from recreational negligence claims, particularly in the context of hunting and fishing. In future articles, we will discuss the RUA, as well as general laws and regulations surrounding winter uses of the lake, such as snow machines and ice fishing. If you have other questions about the application of the RUA, or any other matter, please contact us at info@linnellfirm.com.
Linnell & Associates, PLLC is a real estate law firm specializing in assisting homeowners and real estate professionals in all aspects of real estate law.
