Category Archives: Michigan Real Estate Lawyer

Locked Out? The Court of Appeals Decides Whether an Unlocked Gate Can Be Installed Within an Easement


On January 28, 2020, the Michigan Court of Appeals issued a published opinion in Smith v Straughn, __  Mich App __; __ NW2d __ (2020) (Docket No. 345391), holding that a landowner can install a gate across an easement so long as the gate is not erected for the purpose of interfering with another’s use of the easement and the gate does not actually interfere with the use of the easement. The Michigan Court of Appeals utilized a reasonableness-under-the-circumstances test that will be relied on in future disputes between fee owners and easement holders as to whether a fee owner’s use of the easement interferes with the easement holder’s use.


Ralph Steven Smith and Sue Smith purchased property in Niles, Michigan and eventually divided the property into five parcels (Parcels A, B, C, D and E). The Smiths lived on Parcel E and created a 66-foot easement across Parcels B, C, D and E, including a 14-foot gravel bed, so they could access the other parcels. The Court of Appeals does not provide a diagram illustrating the property and the easement; however, we provide one below for visualization purposes only:

Joseph Straughn later bought Parcel C subject to the easement. Straughn experienced a break-in and theft at his house on Parcel C and asked the Smiths for permission to install a gate along the southern line of his parcel, including across the easement. Though the record differed as to whether the Smiths consented, Straughn eventually installed a 7-foot-tall and 400-foot wide wooden fence along the southern line of his parcel, including across the easement, with two doors that rolled open beyond the width of the 14-foot wide roadbed in the easement. The Smiths complained that Straughn left the gate closed, requiring them to step out of their vehicles every time they needed to access Parcels A or B and open the gate. The Smiths eventually sued Straughn, seeking unimpeded access and use of the easement. The trial court denied the Smiths’ request and permitted Straughn to maintain his fence and gate across the easement, and the Michigan Court of Appeals affirmed.


The Michigan Supreme Court has held that an “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.” Id. at 2. In this case, Straughn is the fee owner of the land, and the Smiths are the easement holder.

The Court of Appeals centered its analysis on the principle that a “fee owner’s use of land on a servient estate is reviewed for reasonableness and whether that use is unreasonably inconsistent with the easement holder’s rights.” Id. at 3. This is a factual analysis and the Court of Appeals found many facts in favor of Straughn that his gate was not unreasonably inconsistent with the Smiths’ rights:

  • His security concerns after break-ins and thefts were reasonable and reasonably addressed by the fence and gate. Id. at 3.
  • The gate was easy to open. The trial court itself conducted a site visit “and personally determined that it ‘could easily move the gate’ itself.” Id. at 2-3. Moreover, the Smiths also easily opened the gate at the trial court’s site visit, despite the Smiths’ claims they could not. Id. at 3.
  • The gate still permitted the Smiths to use the easement for ingress and egress purposes across their parcels. Id. at 2.
  • It was not unreasonable for the gate to be closed or for the Smiths to have to exit their vehicles to open the gate as the Smiths could still use the easement. Id. at 2-3.
  • While the easement itself was 66-feet wide, the actual roadbed was only 14-feet wide and the gate opened 19.5-feet wide, still permitting the Smiths to use the roadbed to access their parcels. Id. at 3.
  • Straughn had offered to mechanize the gate, which the Smiths’ rejected. Id. at 4. The trial court and Court of Appeals further took note that the Smiths also would not accept added counterweights to make the gate easier to open or removing the gate doors and just leaving the fence intact as other compromises. Id. at 1, n 2.

The Court of Appeals also commented that an easement does not need to reserve the right to install an unlocked gate to be permissible; however, the installation of a locked gate would require such a reservation.


Easements naturally create tension between the fee owners who own the land and the easement holders who are entitled to reasonable use and enjoyment of the easement. The Court of Appeals’ decision in Smith v Straughn reinforces the principle that while an easement holder is entitled to proper and reasonable use of the easement, this does not bar the fee owner from taking certain actions regarding the easement, especially if such action is reasonable and does not unreasonably interfere with the easement holder’s use. Smith v Straughn also provides a cautionary tale to easement holders who end up in a dispute with the fee owner and are rigidly opposed to any sort of compromise: Straughn presented the Smiths with at least three different options to ease their alleged burden caused by the gate; however, the Smiths refused all these options. Fee owners and easement holders caught in an easement dispute should carefully review their documents to determine the purpose and scope of the easement and review the facts on the ground to determine whether the fee owner’s use of the easement is reasonable or unreasonably interferes with the easement holder’s rights.

Kayleigh B. Long is an attorney with Hirzel Law, PLC and focuses her practice in the areas of appellate law, community association law and civil litigation. Ms. Long received her Bachelor of Arts degree in International Studies from Indiana University. Prior to attending law school, Ms. Long joined Teach for America, teaching kindergarten in Harper Woods, Michigan and southeast Washington, D.C., and received a Master of Arts in Teaching from Oakland University. Ms. Long then obtained her Juris Doctor degree from Indiana University Robert H. McKinney School of Law, where she graduated in the top 5 of her class and served as the Senior Executive Editor on the Indiana Law Review. Her law review note was selected for publication in the Indiana Law Review, and she recently had an article published in the Denver Law Review. She can be reached at (248) 478-1800 or

The Dangers of Owning Property as Joint Tenants with Full Rights of Survivorship

There are several ways in which property can be held by multiple owners.  For married couples, one of the most commonly used estates is the tenancy by the entireties.  It provides a right of survivorship that enables a surviving spouse to hold property without having to proceed with probate.  In Michigan, this estate is only available to married couples.  In some instances, parties may seek to mimic the right of survivorship contained in a tenancy by the entirety by holding property as joint tenants with a full right of survivorship.  Similar to a tenancy by the entireties, this estate cannot be unilaterally severed by the act of one of the parties, and it provides an indestructible right of survivorship to the surviving joint tenants.  This may make it appear to be a more attractive option, in some circumstances, to a tenancy in common which is the presumptive estate for unmarried individuals in Michigan.  However, parties seeking to utilize a joint tenancy with full right of survivorship should be aware of the risks that come with such an estate.

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The Evolving Landscape of Sex Discrimination in Housing

Aimee Stephens worked as a funeral director for R.G. and G.R. Harris Funeral Home in Garden City, Michigan for several years. Throughout that time, she struggled with her gender identity and, in 2013, she began dressing as a woman at work. The funeral home’s dress code was strictly gender-based and Stephens’ refusal to dress as a man, in compliance with the gender-based dress code, resulted in her termination (see more information here). Aimee Stephens filed a complaint with the Equal Employment Opportunity Commission (the “EEOC”), alleging her termination was the result of unlawful sex discrimination. The EEOC brought a lawsuit against the funeral home in the Eastern District of Michigan and the case is now in front of the United States Supreme Court, with oral arguments recently heard on October 8, 2019 (see more information here). Read more

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.

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Amending Deed Restrictions: Giving Meaning to Successive Terms without Ignoring Declarant Intent


Restrictive covenants in Michigan are valuable property rights and have been effectively used to assist in the orderly development of Michigan communities.  The rights contained in restrictive covenants are used by developers to implement their community visions and by property owners to protect and enhance the value of their homes.  Once adopted these provisions often require unanimous consent to change or modify by default, however, in many cases the original declarant includes an amendment provision to permit a stated percentage of lot owners (or other interested parties), less than all, to adopt an amendment.  The effective date of an amendment, even if validly adopted, may be subject to interpretation if the restrictive covenant creates successive terms.  Any party seeking to adopt an amendment to its declaration should be aware of these risks and the potential impact of the expiration of a period of time contained in their declaration. Read more



On October 25, 2018, the Michigan Court of Appeals issued an unpublished opinion in the matter of Concerned Property Owners of Garfield Township, Inc v Charter Township of Garfield, unpublished per curiam opinion of the Court of Appeals, issued October 25, 2018 (Docket No. 342831). The Garfield case involved the interpretation of a zoning ordinance that addressed short-term rentals of residential properties in certain districts. In Garfield, a number of homeowners frequently rented out their homes for short-term intervals, usually for about one week in duration. In September 2013, the Garfield Township Zoning Administrator expressed an opinion that the zoning ordinance then in effect, called “Ordinance 10”, permitted short-term rentals.

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Court rules that Michigan HOA cannot collect assessments after restrictive covenant expires

In Deghetto v Beaumont’s Seven Harbors White and Duck Lack Association, issued June 22, 2017 (Docket No. 330972) (Unpublished Opinion), the Michigan Court of Appeals recently ruled that a homeowners’ association could not continue to collect assessments after the restrictive covenant expired.

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