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Abandonment of Easements in Michigan

Easements in Michigan can be terminated by one of a handful of ways depending on the type of easement involved and the language of the easement itself. For example, if an easement is granted solely to access a structure on another property, and that structure is destroyed, the easement would usually terminate. Similarly, if an easement by necessity is obtained for ingress and egress to a landlocked property and then another access to a road is gained by the landlocked property, the easement by necessity would cease to exist. Another way that an easement can be terminated in Michigan is by abandonment by the holder of the easement. The concept of abandonment was at issue in the recent unpublished case of Heator v Bowers, unpublished per curiam opinion of the Court of Appeals dated August 12, 2021 (Docket No. 354416).

Relevant Facts from the Heator Case

The dispute at issue in Heator was over the potential placement of a dock on the defendants’ property by the plaintiffs. In 1965, two adjoining property owners entered into an easement agreement. That easement agreement was amended in 1967 by adding two additional property owners so that a road could be built to the original two parties’ properties. As part of the 1967 easement, about 125 feet of the easement area was to remain unimproved so that all owners in the development could have access to Silver Lake.

Then, in 1989, the successors to the original parties amended the easement agreement. The 1989 amendment provided:

[T]he owners of property abutting the Easement may build a boat dock on Silver Lake at the end of the Easement at Silver Lake for the purpose of mooring boats owned by them but not others. That the Road Easement and the North 124.78 feet thereof and the dock thereon shall not be used for picnics. The Easement is to be kept open and unobstructed to allow passage of all abutting owners and their guests to have access to Silver Lake. It is further agreed that the dock and all boats shall be removed from the Easement from November 1st to April 1st of each year.

About six years later, in 1995, the plaintiffs placed a boat ramp on the easement and, according to the defendants, identified that they would not build a dock. At no point thereafter did the plaintiffs ever attempt to put in a dock on Silver Lake.

In 2018, the plaintiffs decided to sell their property. When potential buyers were interested in acquiring the property, they were told by the defendants that if they bought the plaintiffs’ property, they could never build a dock. As a result of the defendants’ representations to potential buyers, the plaintiffs filed a lawsuit seeking, in part, for the court to order that any owner of their property could build a dock in accordance with the 1989 amendment.

The Court Found No Intentional Abandonment of the Easement by the Plaintiffs

The bulk of the decision was the analysis of the defendants’ argument that the plaintiffs had abandoned their right to build a dock by either not using it or building a boat ramp instead of a dock in 1995. In rejecting this argument, the Court of Appeals stated:

“To prove abandonment, both an intent to relinquish the property and external acts putting that intention into effect must be shown.” Ludington & Northern R v. Epworth Assembly, 188 Mich App 25, 33; 468 NW2d 884 (1991). “Nonuse, by itself, is insufficient to show abandonment. Rather, nonuse must be accompanied by some act showing a clear intent to abandon.” Id. (cleaned up). In Ludington, for example, this Court concluded that the plaintiff did not abandon its use of the railway in a case where the easement “was created ‘for railroad purposes,’ and there ha[d] been no showing that this purpose [was] no longer existent or necessary.” Id. at 35. Further, this Court stated: “[I]t does not follow from mere nonuse that the purpose for which an easement was created no longer exists.” Id.

In the Heator case, the Court stated that, although the plaintiffs had not built a dock in the 29 years since the 1989 easement amendment was executed, they had never manifested an intent to abandon the easement forever. In doing so, the Court stated that there was “ample evidence” that the plaintiffs intended to abandon the idea of a dock in 1995, but no evidence was presented that the plaintiffs intended to forever abandon the easement right to build a dock. This was a critical difference, and ultimately led the Court’s decision that a right did exist to build a dock in accordance with the 1989 amendment.

Although not discussed in the Heator case, examples where an intentional abandonment of an easement have been found in other Michigan decisions include:

    • Harris v. Fid. Nat’l Title Ins. Co., unpublished per curiam opinion of the Court of Appeals, issued February 27, 2020 (Docket No. 346156)-A municipal body recorded a unilateral disclaimer of all interest in an easement on property;
    • Wurtz v. Garno, unpublished opinion per curiam opinion of the Court of Appeals, issued April 3, 2007 (Docket No. 264702)-An easement holder’s use of another road as the only means of ingress and egress evidences a clear intent to abandon an easement in property that is not being used as a roadway;
    • Michigan Dep’t of Nat. Res. v. Carmody-Lahti Real Est., Inc., 472 Mich. 359, 386, 699 N.W.2d 272, 288 (2005)-When railroad easement holder sought federal permission to abandon its railroad and removed the rails itself, it showed an intent to abandon the easement;
    • Hutchinson v. Cheboygan Cty. Rd. Comm’n, unpublished per curiam opinion of the Court of Appeals, issued December 20, 2002 (Docket No. 232851)-County had abandoned its easement for water development of the Pigeon River by not using it for more than 60 years and by deeding its rights to the county road commission who could not perform the “water development” services that formed the original purpose of the easement; and
    • Carr v. Bartell, 305 Mich. 317, 322, 9 N.W.2d 556, 558 (1943)-The construction of a permanent structure (a barn) on a driveway easement showed an intent to abandon the easement as to the portion of the easement past the location of the barn.

Conclusion

As mentioned above, and as the Heator case showed, simply because an easement, or a right granted in an easement, is unused, does not mean that it is automatically terminated. The assumption is that the party that holds an easement right can, at some point in the future, invoke those rights under the easement, even if those rights had not been invoked for a long period of time. A similar issue was also decided in the recent case of Plocienniczak v Duer, unpublished per curiam opinion of the Court of Appeals, issued October 22, 2020 (Docket No. 349131). In the Duer case, the easement at issue allowed for expansion of a road through an orchard up to 25 feet, and although only 12 feet were being used for 41 years, the Court allowed a subsequent purchaser to expand it up to the originally-granted 25 feet.

Therefore, if your property is encumbered by an easement that is potentially troublesome, you may only have two options to obtain clarity: (1) seek and obtain an agreement from the holder of the easement that can be recorded terminating or releasing the easement in whole, or in part; or (2) seek an order from the court that the easement has been abandoned. Neither avenue is without certain pitfalls and a discussion with a qualified real estate attorney should be had any time you are considering purchasing a property subject to an easement or if you want to explore the possibility of having an easement removed by one of the mechanisms identified above.

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.

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