What are Easements?
An easement can be simply defined as a right to use the land of another for a specified purpose. For example, "X" has the right to go onto "Y’s" property to get to the water. "X" does not have a right to damage or interfere with "Y’s" property rights, however, nor can "Y" ignore "X’s" right of ingress and egress to the waterway. In Michigan, easements have been established for a variety of other purposes in addition to the right of ingress and egress – roads and highways, utility lines , and agricultural and commercial purposes.
The terms of an easement typically confer specific rights on the easement holder while retaining the duties of ownership on the part of the land owner, but there are exceptions where the land owner is responsible for maintaining or repairing an easement or when the easement holder has an obligation to pay for certain expenses.
Where easements are not already reflected in your Abstract of Title or Certificate of Title, it is important that you obtain a Zoning or Building & Use Permit prior to paying for an easement, as any freshly created easement will not appear on the Abstract or Certificate until they are properly recorded.
Common Types of Michigan Easements
Easements in Michigan are generally categorized by their methods of creation. They can be created expressly or by necessity, and if they are not established in either of those ways they can be created through prescription, abandonment, estoppel or estoppel by division.
An express easement is created when property owners enter into a contract that grants an easement to one party. The language of the contract is written in the deed to the property so that it can be enforced later in the event the right-of-way becomes an issue.
These easements often follow the roads that were created when the property was developed, and the property owners who have the easement have the right to use the road to travel over land they do not own. These rights-of-way are often built over property lines in a manner similar to a prescriptive easement. While they may have a similar basis, they are generally upheld due to their being authorized in the deed.
The creation of an express easement is one of the simplest ways to create one for your neighbor or yourself. The fact that both parties are in control of the terms protects both from any later issues in the event of a dispute.
Like the prescriptive easement, the creation of an easement by necessity involves the use of roadways over land that is not privately owned. However, it differs in that it is due to the necessity of accessing property that is not otherwise accessible. The situation comes up when land is divided, and the only way for the owner of the property to reach it is to cross over land they do not own.
This situation is often created in subdivisions, where property owners cannot exit the only road from their homes without crossing the property lines of their neighbors. As with a prescriptive easement, it must cross over land owned by the public, and it must be used in a continuous and uninterrupted manner.
A prescriptive easement bears some similarities to a license, but there is a crucial difference. A license allows a person to use land by a private individual, while a prescriptive easement is created by a court of law. It means that a person has used the land of another for a period of time that is legally acceptable, but can also be terminated if the land owner so chooses.
To qualify, it must be clearly defined, and the use of the land must be without interruption. The eventual purpose of it is to grant prescriptive easement and allow the passage it grants. In Michigan, a prescriptive easement must meet a number of requirements. First, there must be continuous use and must not be interrupted. The length of time a prescriptive easement has been established can vary. If the prescriptive easement is for a road, or the lateral movement of ground, it must be at least 15 years. For other easements, it can be as little as five years.
Moreover, whether the use of the property was adverse to the owner is a factor that must be considered. If the use was permissive at first and he later claimed no permission was given, it could be terminated. The use is also subject to the legal rights of the land owner. Any claims of ownership when the easement is used must also be considered.
An equitable easement may be established to protect the rights of those who build a structure that may be partially on two separate properties.
In needs of split property, or a subdivision, an equitable easement may come into play. It may also apply when one home is built in a way that crosses over the property line of the next property. When land is divided in this way, an easement may be needed to grant the person with the home the legal rights to get rid of, or use the part of the land that the structure lies on.
An easement of this type protects the values of the parties who may lose it if the structure is demolished. Without this form of easement, the neighboring party could sue the builder of the structure to remove it. While it can be terminated in some situations, it generally remains intact.
Legal Requirements for Easements
An easement is an encumbrance on the use of land that creates a personal right in one party to use property owned by another. They come in many forms and include, such things as: a right-of-way for a road, a right of an adjacent owner to build a pier extending into a lake, a prescriptive right to drain water from one property to another, a right of a utility company to place poles, wires and other equipment on a right-of-way, and a right of access for oil and gas exploration, production and transmission.
In Michigan, easements are subject to the Statute of Frauds which requires that the conveyance of an interest in land be in writing and signed by the party to be bound or by his agent lawfully authorized in writing. The statute only applies to the type of interest that the easement confers. For example, the statute of frauds does not apply to all easements. If a right-of-way will last more than a year, it must be in writing; however, if someone has a prescriptive right that is easement in nature, it can be established by oral evidence of long-continued use.
The creation of an easement in a mortgage deed does not create an easement in the land transferred in foreclosure. Rather, it is a covenant that is part of the chain of title, and can be enforced against the grantee at the time of the foreclosure. Additionally, while easements by dedication are allowed, it is not sufficient to simply show that the conveyance was made in reference to the plat and is for the purpose of a public street without specific language conveying a right of way over the land.
An easement is distinguished from a right-of-way in that it does not confer a demandable right. It is also distinct from a revocable license that grants a limited privilege that can be revoked by the owner of the property at any time.
How a Michigan Easement is Formed
Easements may be created informally by the actions and conduct of the parties or in writing by deed. The parties may create an easement by operating as though it existed. Where the parties are using the parcel of land as if there were an easement in existence, an action for an injunction requiring the parties to respect the right or so establish an implied easement. This type of easement is known as a prescriptive easement, and assuming all of the required elements exist, it can be obtained without any written instrument. Prescriptive easements, however, will not be recognized by a court unless the use by one of the parties have been open, obvious, notorious and hostile. If the use is based on a license or any other type of agreement between the parties, an easement will not be created.
An easement may also be created in writing by deed. For example, if A wants to grant an easement over his property to B, A can grant B an easement in writing, and state the purpose. Such a deed must comply with the statute of frauds. Further, if the easement does not clearly describe the land in such a way that another party could identify it, it is void because of the statute of frauds. However, if the parties to the deed or to the deed or grant or delivery of the deed did not show the grantee the land to enable her to determine whether the extent of her rights had been defined with sufficient precision, the deed is operative as a conveyance of an interest in land but its effect is not effective until the extent of the interest has been determined. This might occur, for example, if the parties convey an easement by deed, and refer to a map to locate it and the map is later lost. Since the parties relied on the lost map to describe the land, the easement will not go into effect until a new map describing the land or easement to be granted is created and shown to the parties. This is true whether the map lost is an original map or a copy. Moreover, in the case of a lost errant, even though the conveyance expressly authorizes a survey or map to be filed as an index of the land conveyed, the conveyance does not take effect until an actual survey or map describing the land has been filed.
Let Us Help You Settle Your Easement Dispute
When parties have disagreements over easements, they can arise in a variety of circumstances, including: Legal disputes involving easements are especially common where useful rights to an easement are limited in time or by the area across which access is granted. This may lead one party to assert that an easement has been terminated by non-use, while the other side claims that the easement’s right can be revived at any time. In such cases, a common approach by Michigan courts is to allow an easement to remain in effect for a period of time, and then approach the issue with an eye to the usefulness of the easement . Where an easement is not in use for years and years, courts are likely to terminate the easement upon abandonment by the party holding the easement rights. The determination of the existence of easement issues is not easily settled, and the resulting case law often involves complex and fact-specific courts’ findings, interpretations of the legal description of the easement in question, and final determinations about where other considerations may outweigh the need of a landowner to maintain "pure" or overly exclusive rights to the property being traversed by the opposition.
Modifying and Ending Easements
After formation, easements can be modified or terminated by express agreement between the parties or pursuant to Michigan statute. See MCL 559.185; Caswell v Brohl, 254 Mich App 533 (1997); Dunnigan v Richmond, 219 Mich 618 (1921). Other than by express agreement or pursuant to Michigan statute, an easement will not be modified or terminated unilaterally by a party and generally requires either a court order or agreement of the parties.
Among other circumstances, a court may terminate an easement where the owner of the servient estate no longer has the burden of the easement due to changes in rights in the dominant and servient estates since the time the easement was created. See Caswell v Brohl, 254 Mich App 533 (1997); B.P. Oil Co v Buckeye Pipeline Trans Co, 87 Mich App 177 (1978).
If a person obtains an ownership interest in both the dominant and servient estates, this is known as "unity of title" and typically results in the automatic termination of the easement. The owner of the dominant estate may have one of several interests in the easement including: a fee simple interest in the dominant estate, a dominantly leased fee, a tenant’s reversion, a life estate, a fee simple subject to condition subsequent, or a fee simple determinable. The law will presume that the interests will not "merge" or result in a termination of the easement and any merger will be partial, not total. The merger does not affect any interests of lessees or third parties. It typically will not result in a termination of the easement in several situations, including where there is more than one contiguous dominant estate.
Easements May Affect the Value of a Parcel of Land
For a property considered to have an easement, the effect on value can be positive or negative. Because an easement conveys certain rights on the property, the overall assessment of a property value should include what, if any, effect that conveyed right has on value. An appraisal, for example, may consider whether an easement can prevent certain activities on the land. In determining the effect, you also have to consider whether the easement benefits others. In some cases, even if an easement costs a property owner value, the owner does not mind the cost, because the value of the property is otherwise strong enough to offset the loss.
In Michigan, there are several types of easements that could potentially affect the value of a given property. There are utility easements, ingress or egress easements, access easements, and mining easements, as well as many other types of easements. Each type will be considered differently by a property buyer or seller, and weigh certain aspects of the property differently. For example, an ingress or egress easement increases the value of a property, because the value of the property with no access is worth much less or even nothing at all. On the other hand, a utility easement will cost a property owner or buyer value because the utility company will have permission to come upon the property to work on the utility lines, and may damage or make alterations to the property that the owner would otherwise not want or allow, such as cutting down trees, or boring into the ground to install utilities.
Conclusion: Understanding Michigan Easement Law
In this article, we have examined the foundations of easement law in Michigan, including the various types of easements and the different ways they may be created, modified or terminated. This overview has also explored how easements may impact property rights, particularly regarding granting access and use rights or infringing upon the reasonable use of a landowner’s own property. Despite the fact that easements are often viewed as a simple way of gaining access , the above rules and principles, or exceptions to such rules, can often complicate matters. Thus, parties dealing with easements may benefit from the advice of a knowledgeable attorney who can help producing and interpreting the language applied in various easement agreements, as well as present arguments before a judge or jury in any disputes arising regarding the parties’ rights.