Vacating a Road or Alley under the Land Division Act
In Michigan, a significant portion of commercial and residential real estate development occurs through the creation of either subdivisions or condominiums. Typically, an owner of a large parcel of land will establish a condominium or subdivision as a means of dividing the land into various smaller lots (called “units” in a condominium) that can be individually sold. Although the more recent trend, particularly in residential developments, is to create condominiums, most older developments were done through creating platted subdivisions under the Michigan Land Division Act, MCL 560.101, et seq., or one of its predecessor statutes.
The process of converting a single parcel of land into a subdivision is called platting. Under MCL 560.102(a), a plat is defined as a “map or chart of a subdivision of land” but essentially is a detailed map identifying the layout and features of the subdivision and will include the number, location, and size of each lot. The plat will also identify other important monuments such as streets, alleys, and easements.
MCL 560.109(1)(e) of the Land Division Act requires that each lot within a subdivision plat is accessible. In addition, the Land Division Act requires all subdivisions to have adequate easements for public utilities. Most subdivision plats comply with this requirement by either dedicating certain roads to the public or through the creation of easements for public utilities that provide services such as electricity, water, gas, sewer, telephone, or transportation to the public. Although many plats dedicate roads or alleys to the public, over the passage of time, the use and nature of a particular subdivision can change significantly, and the public may no longer have any need for a particular road. Accordingly, the Land Division Act contains a mechanism for roads or alleys to be vacated and put to better use.
Michigan law provides two different mechanisms to amend a subdivision plat. In most circumstances, amendment requires either: (1) unanimous consent of all lot owners as well as the municipality in which the subdivision is located; or (2) filing a lawsuit in the circuit court by the owner of any lot in the subdivision. See MCL 560.104, MCL 560.221 and MCL 560.222. One notable exception to this is under MCL 560.226 which provides that a street or alley that has been dedicated to the public for purposes other than pedestrian or vehicular travel cannot be vacated except by both a resolution adopted by the municipality and by court order.
In the event unanimous consent of all lot owners within a subdivision is obtained, a written agreement between all of the lot owners that are to be part of the replat must be recorded with the register of deeds, along with proof that notice to the abutting owners was given by certified mail. In addition, the governing body of the municipality must adopt a resolution or other legislative enactment vacating all areas dedicated to public use within the proposed replat. While this process is much quicker and less expensive than filing a lawsuit, it is often nearly impossible to obtain unanimous consent from the owners of every lot in a subdivision.
Alternatively, MCL 560.226 provides that the circuit court is authorized to vacate, correct, or revise a recorded plat. Under MCL 560.224a, each of the following must be named as mandatory defendants in such a lawsuit: (1) owners of each lot in the plat; (2) owners of properties within 300 feet of the plat; (3) the municipality in which the subdivision is located; (4) the director of the department of energy, labor, and economic growth; (5) the drain commissioner; (6) the chairperson of the board of county road commissioners; (7) each public utility known to have installations or equipment in the subdivision or having an easement or franchise right that would be affected by the proceedings; and (8) the director of the state transportation department and the director of the department of natural resources if any of the subdivision includes or borders a state highway or federal aid road.
It is critical to ensure that all necessary parties are given notice of a proceeding seeking the amendment of a plat. The Michigan Court of Appeals had held as follows in discussing this issue:
Plaintiff’s contention that the other subdivision lot owners have no interest in the vacated street is incorrect. It is well-established that a purchaser of property in a recorded plat receives not only the interest as described in the deed but also whatever rights are indicated in the plat. Kirchen v. Remenga, 291 Mich. 94, 102–109, 288 N.W. 344 (1939); Fry v. Kaiser, 60 Mich.App. 574, 577, 232 N.W.2d 673 (1975). A grantee of property in a platted subdivision acquires a private right entitling him “ ‘to the use of the streets and ways laid down on the plat,’ regardless of whether there was a sufficient dedication and acceptance to create public rights”. Rindone v. Corey Community Church, 335 Mich. 311, 317, 55 N.W.2d 844 (1952).
Nelson v Roscommon Co Rd Com’n, 117 Mich App 125, 132; 323 NW2d 621, 624 (1982). See also Michigan Land Title Standard 13.4. The failure to join a necessary party may result in the dismissal of the action and could give rise to a potential challenge or cloud on title in the future.
Under MCL 560.223, the complaint must set forth the portions of the plat sought to be vacated or revised as well as the plaintiff’s reasons for seeking the vacation, correction, or revision. The Michigan Court of Appeals has held that a plaintiff’s reasons for seeking the vacation of a platted road were sufficient when the plaintiff stated: (1) the public has never used the road for any purpose; (2) plaintiff’s garage was partially located on the street; and (3) the road presented a severe cloud upon the title and marketability of the property. See Vivian v Roscommon Co Bd of Rd Com’rs, 164 Mich App 234, 239; 416 NW2d 394, 396 (1987).
If the lots abutting the vacated street or alley on both sides belong to the same owner, title to the vacated street or alley vests in that owner pursuant to MCL 560.227a(2). If the lots on opposite sides of the vacated street or alley belong to different owners, title up to the center line of the vacated street or alley vest in the respective owners of the abutting lots on each side pursuant to MCL 560.227a(1). Importantly, MCL 560.227a(4) requires that when title to any part of a vacated street or alley vests in an abutting proprietor, any future legal description of the abutting lot or lots must include that part of the vacated street or alley. Although the statute does not state what the penalty is for failing to comply with this requirement, this can be the source of litigation.
Vacating a road can be particularly important when an existing structure on a lot is being torn down and a new structure is being built in a different size or location. In certain cases, it may be necessary to vacate a road in order to comply with setback requirements for new buildings. For individuals, a plat amendment may be desirable to vacate an alley that is no longer being used in order to establish a new entryway onto the owner’s property. For developers and owners of multiple lots, a plat amendment may be desirable for the purpose of re-developing the land into a new subdivision or for a new purpose entirely.
If no one contests the lawsuit, the plaintiff may ask the court to enter a default judgment. However, due to the large volume of parties that will necessarily be involved, the more likely outcome is that many people will appear in the lawsuit. Unless the matter is being contested, a consent judgment will likely be negotiated between the parties and ultimately entered by the court. MCL 560.228 requires the judgment to be recorded with the county register of deeds within 30 days of entry by the court. In addition, if the court orders a plat to be vacated, corrected, or revised, the plaintiff is also required to prepare a new plat to be recorded in the county register of deeds to complete the process which requires hiring a surveyor. It is also important to note that many municipalities have their own specific requirements that must be complied with when a plat is being amended or vacated.
Michigan law requires a party objecting to the proposed vacation of a road or alley to demonstrate a “reasonable objection.” Petition of Gondek, 69 Mich App 73, 77; 244 NW2d 361, 363 (1976). The use of a road as a footpath by other lot owners has been held to be a reasonable objection to the vacation of a road. See Petition of Carson, 362 Mich 409, 411; 107 NW2d 902, 903 (1961). The value to the public of a road granting access to a lake has also been found to be a reasonable objection to the vacation of a road. See Petition of Cara Ave, Sandy Beach, Cass Co, 350 Mich 283, 291–92; 86 NW2d 319, 324 (1957). However, in Regan v St Joseph Co Conservation & Sportsman Club, 5 Mich App 686, 690; 147 NW2d 738, 740 (1967), the Court of Appeals held that an objection on the basis of the public interest in accessing a lake was not reasonable when the public would not suffer from the vacation since the principal routes of access were not being disturbed.
As outlined above, there are numerous reasons why someone may wish to vacate, revise, or correct a subdivision plat. In most cases, amending a plat will require the filing of a lawsuit. This process can be time consuming and expensive as there are many technical and statutory requirements that must be complied with, particularly with the number of parties often involved in such a lawsuit. In addition, being aware of all the legal implications associated with amending a plat is vital to avoiding future liability and/or disputes as well as avoiding potential issues with the marketability of the property in the future. Having an experienced real estate attorney should help expedite the process and minimize costs.
Brandan A. Hallaq is an attorney with Hirzel Law, PLC where he dedicates the majority of his practice to representing condominium associations and homeowners associations. He litigates cases involving defective construction, contract disputes, shareholder/member disputes, quiet title actions to determine interests in property, enforcement of restrictive covenants, real estate foreclosure actions, and bankruptcy matters representing creditors. He also has experience preparing documents for business and real estate transactions including purchase agreements, franchise agreements, loan/financing documents and commercial and residential leases and mortgages. In each year from 2018 through 2020, he has been recognized as a Rising Star in the area of real estate law by Super Lawyers Magazine, a designation that is given to no more than 2.5% of the attorneys in the State of Michigan each year. Mr. Hallaq obtained his Juris Doctor degree, cum laude, from Wayne State University Law School where he served as an editor on the Wayne Law Review. He can be reached at (248) 478-1800 or at [email protected].