NOW COME Plaintiffs, [REDACTED] and [REDACTED], by and through their attorneys, MAIZY LAW PLLC, and CASTMORE LAW, PLLC, and submit this Emergency Ex Parte Motion for Temporary Restraining Order and Order to Show Cause why a Preliminary Injunction should not be issued, pursuant to MCR 3.310, and states as follows:

1. Plaintiffs file this motion simultaneously with their civil Complaint filed in this Court. See Complaint attached as Exhibit A.

2. Plaintiffs are the owners of the real property commonly known as _____________ (the "Property"').

3. Upon information and belief, Defendant is the owner of real property adjacent to Plaintiffs' and the parties share a boundary line.

4. Upon information and belief, Defendant had a survey of its property completed, and now claims a certain portion of land that Plaintiffs have been in possession of since _____.

5. Defendant is now seeking to clear out and develop the land in dispute, which Plaintiffs claim as of right by way of adverse possession.

6. For the reasons stated in the corresponding brief, and the affidavit of Plaintiff [REDACTED] in support of the allegations contained in the Complaint and attached to this Motion, unless Defendant is enjoined from continuing development of the real property in question, Plaintiffs will be irreparably harmed.

7. Plaintiffs have no adequate remedy at law.

8. Any delay in the issuance of a temporary restraining order until a hearing on a preliminary injunction is likely to result in the destruction of Plaintiffs' real property, and irreparable harm.

WHEREFORE, Plaintiffs request the Court order the following:

A. Defendants be immediately enjoined and restrained from proceeding with any further development of the real property in dispute;

B. This Order shall remain in full force and effect for 14 days or until this Court specifically orders otherwise;

C. Defendants shall show cause before this Court why a preliminary injunction should not be ordered according to the terms and conditions requested by Plaintiffs.

Dated: July 1, 2022

Respectfully submitted,

BRIEF IN SUPPORT

FACTUAL BACKGROUND

On _________ Plaintiffs purchased the real property commonly known as _________________ (the "Property'). In or around ____, Defendant purchased real property adjacent to Plaintiffs' and the parties have shared a property line ever since.

Upon information and belief, Defendant recently had a survey completed, and is now operating under the belief that it owns real property that Plaintiffs have possessed and maintained since purchasing the Property in ____. Defendant mailed a letter to Plaintiffs (and potentially other neighbors) advising that it had come to the Association's attention after inspecting the boundary lines that several items, which may or may not belong to Plaintiffs, have been stored or erected upon its community property, and that, in upcoming months, the Association would work to clear out these items and clean up its community property.

Relevant to the case at bar is a strip of land which includes a shed as well as a fence that Plaintiffs built in ____. Recently Defendant has begun cutting trees down in the disputed area, which is now impacting Plaintiffs' enjoyment of the Property, in addition to its value.

Plaintiffs have been in continuing possession of the disputed property since purchasing the Property in ____. Their possession has been actual, visible, open, notorious, exclusive, and uninterrupted. Plaintiffs have excluded others from the use of their property, and they hold it under a claim of right as described herein.

It is unclear as of the date of this motion the extent to which Defendant believes it owns real property that has been in Plaintiffs' possession for the last ___ years. It appears that Defendant's clearing project has only just begun, and it is unknown by Plaintiffs at this point how far Defendant's claim its land extends to.

ARGUMENT

I. Temporary Restraining Order

In considering injunctive relief, the Court must consider four (4) factors:

1. the likelihood that the party seeking the injunction will prevail on the merits;

2. the danger that the party seeking the injunction will suffer irreparable harm if the injunction is not issued;

3. the risk that the party seeking the injunction would be more harmed by the absence of an injunction than the opposing party would be by granting of the relief; and

4. the harm to the public interest if the injunction is issued.

Alliance for the Mentally Ill of Mich. u. Dept of Community Health, 231 Mich. App. 647, 660-661; 588 NW2d 133 (1998).' In the case at bar, Plaintiff's request meets all four (4) requirements.

A.Likelihood Of Success On The Merits

Plaintiffs have an extremely high likelihood of success on the merits. Plaintiffs' Complaint consists of two (2) counts: 1) Declaratory Relief; and 2) Quiet Title (Adverse Possession). Declaratory relief is necessary because it is unclear at this point how much land Defendant believes that it actually owns. Plaintiffs have suggested that the Court appoint an independent surveyor to determine what property is actually in dispute.

More relevant to the motion however, is Plaintiffs' adverse possession claim. Adverse possession arises when a party without title to real estate adversely holds possession of the property for 15 years or longer. The doctrine requires only that the party hold continuous, uninterrupted possession for 15 years by actual, visual, open,

1See also Michigan State Employees Ass' v. Dept of Mental Health, 421 Mich. 152, 157-158; 365 NW2d 93 (1984) and Pontiac Fire Fighters Union Local 367 v. Pontiac, 482 Mich. 1, 10-11; 753 NW2d 595 (2008).

notorious, exclusive, and hostile possession under a claim of right. See Rozmarek u. Plamondon, 419 Mich. 287; 351 NW2d 558 (1984).

All of the elements of a prima facie adverse possession claim are present here. Plaintiffs have claimed ownership of the disputed property since ____. However, in ____, their claim to the disputed property became undeniable when they erected a fence and shed on the real property Defendant now claims it owns. If a party intends to claim title up to a tangible boundary line, regardless of the true boundary line, the hostility element is satisfied, even if the parties merely maintain the property under the mistaken assumption that it was the true boundary line. Connelly u. Buckingham, 136 Mich.App. 462; 357 NW2d 70 (1984). Without conceding that Defendant is actually correct as to where the boundary line lies, Plaintiffs have easily established their claim to the disputed strip by way of a claim for adverse possession. Plaintiffs have a strong likelihood of success on the merits. B. Plaintiffs Will Suffer Irreparable Harm If An Injunction Is Not Issued In the event that Plaintiffs' Motion for Temporary Restraining Order is not granted, Plaintiffs will continue to lose Property they have now possessed for ___ years. Defendant's actions are not only affecting Plaintiff's enjoyment of the Property, but its value. Absent this Court's intervention, Plaintiffs will suffer an irreparable injury if Defendant is able to continue to develop the land that is in dispute. See Roghan u. Block, 590 F.Supp. 150, 152 (WD Mich. 1984) ("Since land is considered to be unique, the loss or threatened loss is considered to be irreparable injury.") It is clear that Plaintiffs will be irreparably harmed if their motion is not granted. C. The Risk Of Harm To Plaintiffs Outweighs Any Risk To Defendants If An Injunction Is Issued The risk of harm to Plaintiffs is that they lose their Property if Defendant continues to clear its so-called "common area." On the other hand, there is really no risk to Defendants in enjoining the continued development. As stated herein, Defendant has owned its property since approximately ____. The land in question has not been developed in some 18 years. A slight delay in order for the Court to make its determination in this case will have no material impact on Defendant. D. The Public Interest Weighs In Favor Of Injunctive Relief The public certainly has an interest in making sure that property is not taken from a homeowner without due process. In this case, Plaintiffs have established a clear right to the land in question. The public has an interest in preserving that property right and ensuring that it is not infringed without proper judicial review. MCR 3.310 Pursuant to MCR 3.310(1), a temporary restraining order may be granted without written or oral notice to the adverse party or the adverse party's attorney only if: (a) it appears from specific facts shown by affidavit or by a verified complaint that immediate and irreparable injury, loss, or damage will result to the applicant from the delay required to effect notice or from the risk that notice will itself precipitate adverse action before an order can be issued; I.

(b) the applicant's attorney certifies to the court in writing the efforts, if any, that have been made to give the notice and the reasons supporting the claim that notice should not be required; and (c) a permanent record or memorandum is made of any nonwritten evidence, argument, or other representations made in support of the application. Plaintiffs have clearly demonstrated that immediate and irreparable injury, loss, or damage will result from the delay required to effect notice. Plaintiffs already sent a demand letter to Defendant to advise of Defendant's encroachment on their land. While counsel for Defendant did indicate receipt of the correspondence, further development continued in the time that counsel advised he needed to respond. Further delay here will only result in the erosion of Plaintiffs' rights to the land in question. Plaintiffs' counsel has attempted to reach a resolution with Defendant's counsel, at least with respect to the relief requested in this motion. Thus far, there has been no meaningful response. Notice should not be required in this case because Plaintiffs' request provides for Defendant to show cause why a permanent injunction should not issue within 14- days after entry of an Order granting this motion. This will allow Plaintiffs to stop further development of the land in question. However, this is not an open-ended proposition. If Defendant can show cause why a permanent injunction should not issue, the delay in this case would be 2 weeks or less. This is not much to ask when considering what is at stake for Plaintiffs.

CONCLUSION

WHEREFORE, Plaintiffs respectfully request that this court grant the temporary restraining order enjoining Defendant, or any other party, from further developing the land in question until it can show cause why a permanent injunction should not issue.