Basics of Easements in Michigan
The below is a simplified outline of easements using hypothetical examples to illustrate points. Because easements are interests in real property, they can theoretically last forever.
“Subject to all easements and covenants of record” are words found in almost every deed, but what do they really mean? The short answer is that you are buying land it may have several contracts attached to it, and it doesn’t matter at all that you did not agree to any of the specific contracts. They will survive the sale of the land and your purchase of it. So what specifically are easements and covenants? Each is a very complex legal area that has several nuances, so we will only deal with an overview of easements here.
An easement is the right to enter onto the property of another person. The most obvious place that this is demonstrated is in sidewalks. We have the right to walk across our neighbor’s property so long as we stay on the sidewalk. There are, however, limits to what you may do on the easement. You would not be allowed to set up a lawn chair on your neighbor’s sidewalk and start sunning yourself. That would (most likely) exceed the scope of the easement. You may only walk across it.
So an easement is the just right to walk or drive across another person’s land then? No. That would be too simple. There are several other types of easements, and it is important to understand how they arise and what forms they may take. Phone companies may have easements across your land in order to install lines. This gives them the right to not only string lines through the property, but also to enter your land and perform the initial installation as well as the upkeep. At the time you buy the land there may be no lines running through it, and unless you search the prior deeds you may have no idea that next Tuesday the phone company is coming out with huge poles and trucks to hang lines over your flowerbed.
Easements are also seen when one person gives the other permission to drive across their lot in order for that person to have easier access to another piece of property. This is the type of easement that seems to cause worlds of trouble when one of the pieces of property is later sold. For example, let’s say Bob and Jan were friends, and Jan told Bob that he could drive along the property line to get back to his house. Now you have bought Jan’s land and you don’t want Bob’s annoying son Dave driving across your land. Do you have any recourse? Frustratingly, the answer is: maybe.
There are several factors that may come into play here. Was the easement recorded? Was there another form of notice? Was it intended to be a license that revoked when the land passed to another? Is it Bob specifically who was intended to be allowed to drive across the land, or was it anyone who wanted to get to that piece of land?
To complicate matters, let’s say that neither Bob nor Dave are there anymore, but hooligans keep driving back there to party and are throwing litter on your land. Can you put up a gate to prevent them from getting on your land? The short answer is yes, but you have to give a copy of the key to Bob. The more complex question arises when Bob has actually given them permission to have parties on his land.
But what if instead of litter, the hooligans have created potholes, and now realizing the error of their ways want to come on your land and fix them? You think that you may have a better case of preventing their entry in the future if they are not permitted to fix them. Can you stop them from coming on your land to fill the holes? Probably not. Bob has the right to enter your property and fill the holes, so he can appoint an agent to do it instead. Unless you have some particular well-founded problem with the person(s) he chooses, or the grant of the easement specified who could handle repairs, you will probably have to allow them to fix the potholes.
So to severely simplify things, an easement is a legal right to enter the property of another so long as that entry is within the scope of the original grant of the easement (walking v sun tanning). There must be some form of notice that the easement exists when you take the land, but that notice may be in the form of a prior recorded deed. The easement grants only specific rights, but comes with some implied rights (the phone company installing and maintaining). It will probably transfer to the next successor of the estate, and may extend to visitors (like Dave). The right and duty to repair rests on the holder of the piece of land who is benefited from the easement (Bob). In certain situations the owner of the land burdened by the easement (Jan or you) may put improvements like gates on the easement, but may not interfere with the easement holder’s right to use the easement (must give the key to Bob).
If you purchase or rent a piece of property it is crucial that you understand exactly what you are buying, and who else has a claim to that land. Easements give someone else the right to enter onto your land, so you should have a firm grasp of what the grant says before you purchase the property. They can be created in a variety of ways – even without any documentation. It is essential that you walk the property before you agree to buy to look for possible existing easements, and do a title search. If you feel that someone is abusing an easement that goes across your land, or you think that you have an easement across another’s property, but they won’t let you use it, you should contact an attorney before taking any action that could be considered hostile. The punishments for interfering with another’s rightful property interest can be severe.
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