Recently, the Michigan Court of Appeals has issued multiple decisions that are relevant to deciding the scope of easements under Michigan law. Although these easement cases are not reported, they provide valuable insight into an area of real estate law that can, at times, be very confusing and that require a detailed analysis into the parties’ intent potentially going back many decades. This article outlines some of the major disputes that arise in context of the interpretation of an easement in Michigan to provide an opportunity to gain some understanding in this complex area of the law.
What is an Easement?
In its simplest form, an easement is a legal right for one party to use property owned by another party. The property that has the right to use another’s property by way of the easement is called the “dominant estate,” and the underlying property that has the easement over, under or on it is called the “servient estate.” The use by the easement holder is typically expressly included in the language of the grant, and some of the more common easements are ingress and egress easements, utility easements and access or recreational easements whereby parties are granted rights to utilize another’s property for access or recreation (most typically on bodies of water or parks).
How Do You Analyze the Scope or Use of an Easement?
The principles applicable to the evaluation of the scope and use of easements were described in a 2020 decision from the Court of Appeals:
An easement is a limited property interest; it is the right to use the land burdened by the easement for a specific purpose. The easement holder’s use of the easement is limited to the purposes for which the easement was granted and must impose “as little burden as possible to the fee owner of the land,” but the easement holder nevertheless enjoys “all such rights as are incident or necessary to the reasonable and proper enjoyment of the easement.” The necessity of an easement holder’s conduct can be informed by the purpose and scope of the easement, in addition to the easement holder’s accustomed use of the easement.
Smith v Straughn, per curiam opinion of the Court of Appeals dated January 28, 2020, Docket No. 345391 (citations omitted).
In ascertaining the scope and extent of an easement, it is necessary to determine the true intent of the parties, and that intent is determined at the time the easement was created. Hasselbring v Koepke, 263 Mich 466, 477–478; 248 NW 869 (1933). If the language of the easement is clear, “it is to be enforced as written and no further inquiry is permitted.” Id. This is important because, a party’s use of the servient estate “must be confined strictly to the purposes for which [the easement] was granted or reserved,” Delaney v Pond, 350 Mich 685, 687; 86 NW2d 816 (1957), and “must be confined to the plain and unambiguous terms of the easement.” Dyball v Lennox, 260 Mich App 698, 708; 680 NW2d 522 (2004). Additionally, “[a] party who enjoys an easement is entitled to maintain it so that it is capable of the use for which it was given.” Morse v Colitti, 317 Mich App 526, 545; 896 NW2d 15 (2016).
Even if the language of an easement grant is clear, disputes do arise over the scope of an easement, including what rights were granted to the dominant estate. Disputes may also arise over maintenance and improvements to the easement area. As said above, recently, the Court of Appeals has issued a few cases that are each analyzed below that pertain to one or both of these typical disputes and they are outlined below.
The Plocienniczak Decision
In October of 2020, the Michigan Court of Appeals issued the decision of Plocienniczak v Duer, per curiam opinion dated October 22, 2020, Docket No. 349131, which discussed the scope of an ingress and egress easement. In that case, the easement at issue was recorded in 1965, and was for a 25 feet wide roadway to access lakefront property on the other side of an orchard. The holder of the easement was also provided a right to pave the roadway. However, at least up to 2016, the owners owner of the dominant estate on the lakefront were simply using 12 feet of the easement, and the area being used was unpaved.
After a few transfers, the lakefront property was acquired by the defendants, who wanted to build senior assisted living housing on that property. By this point, the lakefront property had been subdivided into 4 separate properties. The defendants wanted to increase the size of the road through the orchard to the full 25 feet and grade it to allow for vehicles to pass in both directions. The defendants’ plan was that there would be four buildings, each housing six residents plus spouses, in the development.
In the Plocienniczak case, the plaintiffs’ primary argument against the defendants’ plan was the new use of the easement would overburden the servient estate because of the increased traffic on the road through the orchard. However, the Court of Appeals stated that when deciding that issue, “a mere increase in the number of persons using an unlimited right of way to which the land is subject is not an unlawful additional burden.” Henkle v Goldenson, 263 Mich. 140, 143; 248 NW 574 (1933).
Even further, “[i]f a dominant estate with easement rights is divided, all resulting parcels take a share in the easement as long as an unreasonable burden is not imposed upon the servient estate.” Morse, 317 Mich App at 538. The Court went on to say that developments in technology and changes through time to accommodate “normal development” of the dominant estate are allowed “provided the resulting burden is not unreasonable” because they are “necessary for the enjoyment of the easement” and the burdens were “contemplated by the parties.”
The trial court ruled that the defendants were allowed to expand the easement to 25 feet wide but, could not pave it, and ordered that specific trees could not be removed by the defendants. The Court of Appeals stated these rulings clearly showed that the trial court had considered the burden on the plaintiffs’ property and, as such, there was no reversible error on appeal.
The Turvey Decision
In October of 2021, the Michigan Court of Appeals issued the decision of Turvey v Jennifer Mario Biondo Trust UAD 11607, per curiam opinion dated October 14, 2021, Docket No. 355223. In the Turvey case, the plaintiffs had an ingress and egress easement that formed a driveway to their property. The driveway was made of wood chips and the easement stated, specifically, that “in no event shall [plaintiffs] install any asphalt, concrete, stones, gravel or any other paving material other than wood chips or similar natural material….” Because the driveway was hard to maintain, the plaintiff originally sought the approval of the defendants to pave it. When the defendants refused to agree to pavement, the plaintiffs suggested wood planks. The defendants refused to approve anything other than wood chips, and, not surprisingly, litigation ensued.
At the trial court level, the court found that the change from wood chips to wood planks was not allowed under the terms of the easement. The basis for the finding was that wood planks were a “paving material,” and “paving materials” were not allowed under the express terms of the easement. The Court of Appeals reversed, holding that the easement did not ban all paving materials, but simply stated that whatever paving material chosen had to be “wood chips or similar natural material.”
As part of the proceedings, the plaintiffs attempted to put forth evidence that the original intent of the easement was that wood chips were only a temporary solution to the driveway, and that the parties always intended for something different to be put down after construction was completed. The trial court refused to hear that evidence, but the Court of Appeals reversed that decision as well. The Court of Appeals stated that the language of the easement was ambiguous as to what was intended by the limitation to use wood chips or similar natural material, and that the trial court should have allowed the plaintiffs to put this evidence into the record. Finally, the defendants argued that using wood planks would increase the burden on the servient estate if allowed. The Court of Appeals also said that the trial court should consider that when the case was sent back for further rulings consistent with its decision.
Conclusion/Takeaways
If there is any one takeaway from these appellate decisions it is that the scope of rights granted by an easement can be confusing, and that confusion exists if your property is allegedly burdened with an easement or if you believe that you had a right to use someone else’s property. The analysis can be complicated if the easement is older, and the underlying use(s) of the properties have changed. Hiring an attorney who can properly opine after review of all the relevant facts and documents is critical, especially before buying a property that is burdened by, or that is dependent on another property for access to recreational areas or to the property itself. Easement disputes can be very contentious and very costly to litigate, and the benefit of obtaining some level of comfort or understanding before entering into a real estate transaction can provide a significant benefit.
Adam Toosley is a member at Hirzel Law, PLC and focuses his practice on real estate litigation, zoning and land use, construction, and financial services litigation. Over the course of his career, he has represented property owners, landlords, condominium associations, lenders and all parties in the construction chain, handling all aspects of real estate-related disputes, including construction defect cases, payment and landlord-tenant disputes as well as real estate foreclosures, mechanic’s lien cases and fraud and business tort claims in state and federal court as well as in mediations and arbitrations throughout the United States. He is licensed in both Michigan and Illinois. He can be reached at (248) 480-8704 or at atoosley@hirzellaw.com.
