What Michigan Property Owners Should Know About Easement Law
By definition, an "easement" is a recurring right to use someone else’s land in a certain, limited way. The rights given to the person with the easement are called "easement rights." Easement rights are based on agreements (for example, a deed or a contract) between the party creating the easement (often referred to as the "dominant tenant") and the party giving up the rights (commonly known as the "servient tenant"). Every state has laws addressing easements. In Michigan, the law of easements can be found in the Michigan Property Code.
A common use of easement rights is driveway access . An easement for driveway access may give the holder of the easement – the dominant tenant – the right to cross over the property of another – the servient tenant – in order to gain access to a road from a parking area. Or it may give the holder of the easement the right to drive over someone’s property in order to reach a power substation. Or it may give the holder of the easement the right to enter land for the purposes of installing or repairing power lines. For the owner of the servient property, the agreement to provide the easement rights allows that owner to achieve something else of value. For example, the owner of the substation property may give an easement for the driveway because the driveway easement right makes his property more valuable by providing necessary access to the substation.
Types of Easements Affecting Driveways
When it comes to Michigan law, there are three types of easements applicable to driveways. Knowing what kind of easement applies to your situation is vital.
Express Easements:
An express easement is one that is clearly provided for in a document, such as a deed or a contractual agreement. For a driveway, this would typically be recorded with the county Register of Deeds. In an express easement, the parties involved know exactly what they are doing, so it is the least complicated option for easement holders. A variance may still be needed, but the situation is much more clear than for those who do not have an express easement.
Implied Easements:
While an express easement is written out, an implied easement is simply deduced from the circumstances at hand. A specific situation would need to have occurred that necessitated an easement for the benefit of one party. Implied easements are not free; often, the easement holder will have to compensate a lot owner for that use of their land. Technically, the easement holder can sue the lot owner if they deny them the right to use the easement. An example of an implied easement would be when a tenant requests to have their landlord provide access to the tenant’s back door and the landlord delays a decision. By not refusing, the landlord implies that a right of way to the back door would be granted.
Prescriptive Easements:
A prescriptive easement is not for express easements; it only applies when two lots are used by the same person for many years. So what constitutes many years? Typically, a prescriptive easement requires that one use the lot for at least 15 years. The possessor must 1) openly and notoriously possess the property, 2) be hostile to the owner’s rights, and 3) continuously possess the property. Essentially, a prescriptive easement allows for all the rights that an owner of a property has. What happens here is that the adverse user (or possessor) purchases the property and the current owner’s rights are diminished or lost.
Prescriptive easements are complicated but real. They occur during neighbor disputes where the people involved use each other’s property for a long period of time and in a way that was meant to be permanent. As long as no payment is afforded to the owner, they can claim a prescriptive easement.
How to Create a Driveway Easement
In most cases, establishing an easement is a matter of contract. When parties reach a written agreement regarding the existence of an easement, litigation is largely avoided. Legally creating an easement to establish legal rights to use a road on another person’s property for your own benefit in Michigan can typically be achieved via written agreement stating its location, purpose and any other restrictions to it. The agreement can be entered into voluntarily between adjoining landowners.
While a formal document is not always required to create a legally binding driveway easement, having one in place is a good way to prevent potentially long or costly disputes. When a property is sold, it is recorded with the county register of deeds. The same occurs even when the easement is included in the mortgage of the property. By contrast, a court order may be necessary to create a driveway easement if the parties do not voluntarily create one through an agreed-upon contract. If the property upon which the driveway easement is being granted does not have satisfactory access to a public road, either by virtue of no physical access or by virtue of a landlocked parcel, the easement may be established through a court order. When a court order is needed to grant a driveway easement, the court must be satisfied of the following: Finally, an oral contract may be sufficient to create an automobile driveway easement under some circumstances. However, an oral easement may not be legally enforceable because of the statute of frauds, a law requiring that certain contracts be in writing to be binding.
The Rights of Easement Holders
When an easement is attached to a property, certain rights and responsibilities are believed to exist and must be followed by an owner. For example, the property owner has the right to cross, over or on, the easement. The easement owner has the right to grade, maintain and repair the easement in order to effectuate the purpose for which it was created. On the other hand, the easement owner is not allowed to construct buildings or other structures within the easement. Likewise, the property owner is not allowed to substantially detract from or interfere with the uses of the easement by the easement owner. In Michigan, it has long been held that a way is subject to the burden of reasonable damages to the property over which it passes, or which is incident to the easement. Also, as far as maintenance, Michigan law holds that each party has a duty to serve his grantees or cotenants as have rights in the way.
It is very common when an easement holder and an affected property owner come into conflicts. Many times property owners are very well intentioned and merely wish to use the easement for certain purposes, i.e., storing a motor home. However, the easement holder has his own uses in mind and/or they have been permitted by the court. Property owners attempting to utilize the easement may simply be doing so without proper planning and/or consultation with the easement holder or without otherwise consulting with the court, such as for an easement by necessity, or record owner of the easement. In any case, it is always necessary to take into consideration the rights of the easement holder. Failure to do so will result in claims for trespass or interference with an easement. When such claims are filed, they will be strongly defended by the easement holder, especially in Michigan.
Easements by express grant should be carefully scrutinized in terms of what they allow and do not. For easements by necessity, a careful analysis will be required to determine if the easement is reasonably necessary to provide access to a property owner or if the access could be provided by alternative routes. Unfortunately for the property owner, Michigan law holds that use of an easement is permissive if used within its scope or terms, but when the use exceeds the scope or terms, it becomes a nuisance. In that case, the affected landowner can recover for injuries resulting from the trespass. Even though there is no specification of damages, easement holders may recover consequential damages. For example, where the adverse use of an easement for an extended period of time resulted in the discontinuance of the entire strip of land over which the easement passed, landowner may recover for lost rental value of the easement even when he did not suffer actual damages. Michigan law recognizes that a property owner cannot substantially interfere with the beneficial use of an existing easement. Such interference results in a trespass and may be enjoined.
Easement Disputes
There’s a reason the law provides remedies to deal with easement disputes. Issues related to whether an easement is being used in an appropriate manner (or at all), or whether the easement is causing damage to the benefiting land (or its habitable area), and so forth can be common for property owners that have them. And while a lot of driveway easements are uncomplicated — there’s usually one route, and everyone goes about their business peacefully without obstruction — other driveway easements can be more complicated, especially when more than two landowners are involved, or when there are multiple easements affecting the same parcel of land. A tripping hazard, for example, can lead to a property owner health concern; or a property owner may be concerned about other vehicles parked in the driveway because it can be a safety hazard. Although Michigan courts have ruled that a plaintiff’s remedial concerns are strictly assessed on the basis of reasonable use of the easement (and not the easement owner’s inconvenience), property owners are not always able to accurately assess the inconvenience it would impose on the defendant to be forced to remove the alleged hazards others want removed, or parts of their land that they don’t consider to be an "obstruction." An easement defendant’s objection to proposed repair or maintenance work may not turn on diverting water that has flooded the defendant’s basement; it may also turn on fears that the proposed work will erode soil or lead to flooding of a home or cultivated area. Or the owner of a dominant estate may object to his or her landlord’s desire to create parking spaces for adjacent neighbors — pending the tenant moving out. The law does not favor abatement of easement rights unless the easement is substantially useless to the party having the rights, which applies only when the usefulness of the full enjoyment of the easement has been diminished to a fair extent. Under Michigan law , no one is likely to be successful in claiming an exclusive use easement to the exclusion of all the rights of the other easement owner unless the showing is very strong. Easement disputes are usually resolved through negotiation and compromise. If a driveway easement involves private property owners and they are unable to reach an agreement on how the driveway should be used, where exactly it is situated, who is responsible for maintenance and repairs, and so forth, they may need to consider mediation and/or a lawsuit to resolve the issue. Mediation entails the intervention of a neutral third-party who is experienced at working with the parties to facilitate a resolution. A well-drafted settlement agreement can save thousands of dollars in attorneys’ fees when the property owners are have significant issues with each other and a history of contentiousness. Where there’s been unreasonable disruption of an easement or a landowner’s property use, whilst the owner of the dominant easement parcel suffers unreasonable inconvenience as a result — the plaintiff may want to sue the other landowner. When an agreement cannot be reached, the burden is on the complaining property owner, like in any other type of dispute, to demonstrate to the court that there’s a disputed issue of material fact that requires a judge to make a decision. Otherwise, an easement owner’s motion to dismiss will be granted and the lawsuit will be dismissed. Courts do not issue rulings based on hypotheticals — it must be the case that absent a ruling, the plaintiff would suffer some type of harm if the easement was not fixed, or the plaintiff had to continue to use it the way it is. When a dispute involving a driveway easement becomes unresolvable, the property owners may need to file a lawsuit to either compel the other to conform their activities to the easement rights, or compensate them where there’s been an impact on their property rights.
Modifying and Terminating a Driveway Easement
If you and your neighbor have agreed that a driveway easement is no longer necessary, or has outlived its usefulness, you can petition the Michigan courts to terminate the easement. You may wish to terminate a driveway easement if you no longer require access to a shared drive or the original need for the easement is simply no longer applicable. You can also petition a Michigan court to modify a driveway easement that is no longer appropriate for your needs, such as a modification of the designated easement area, especially in cases where a nearby road is now accessible, to change the drainage requirement of the easement, or to reallocate the financial costs related to the private road.
To pursue a modification or termination of an easement, a party must prove the change of circumstances justifying the change to the easement is so significant it would create an unusual hardship to be held to the existing easement agreement. A property owner with a valid and recorded driveway easement across a neighbor’s property has a specific right of action against an individual who purposely blocks or interferes with the easement to make way for his or her own crop growth or to facilitate construction on the interfering property. Even if you access the driveway easement but build a fence within the limits of a recorded easement, the party blocking the easement may be liable for damaging the easement and for the associated costs of repairs and modifications.
When to Consult an Attorney About an Easement
Easements can be a tricky thing to deal with, especially if there’s a dispute over the terms or right of access. The laws regarding Michigan driveway easements tend to be very complex, and sometimes contradictory in their application. It can be very difficult for a property owner to navigate the complexities of Michigan’s easement laws without experienced assistance from a real estate attorney. You need someone who really understands Michigan property law to protect your interests in a driveway easement situation .
The best way to ensure that you get good legal assistance is to enlist the help of an attorney whose primary practice area is real estate law. Find one that has experience with easement issues and driveway disputes. You can find some potential candidates for your legal needs by looking up attorneys in your area along with the search terms "real estate trade" or "real estate property law." You should also ask around to see if you can get personal recommendations for services from people who have experience with real estate lawyers in Michigan, as that’s often a good indicator that they’ll be able to provide the legal aid you need.