When Does Easement Access Extend to Additional Parcels

My question involves real estate located in the State of: Michigan
My neighbor bought 80 acres 10 years ago. He has an easement through my property to his first 10 acres since 1955. The previous owner bought an adjoining parcel of 70 acres in 1964. Our lawyer assured us that the easement does not apply to the second parcel. The neighbor is now selling the whole parcel and has it listed as " may be divided ". He says he has access because they have used our road for over 40 years and he has 2 signed affidavits saying this. Who is right and what can I do? We have owned our property for 33 years, the road is in the front yard, and this is waterfront property. The previous owner and affidavit people are all deceased. The previous owner also had access to the second property through a cousins land but this is no longer available. We don't want to see the second parcel split and developed.

Your attorney is correct. The original easement was for access to the original 10 acres and it does not and will not extend beyond that. It was not the original intent of the grantor to extend access to the additional property regardless of who owns it. And to try and extend the easement to serve the additional land would overburden the easement. The fact that he has used the easement for 40 will not help him get a prescriptive easement for the additional lands if that is what he is thinking. But the devil is always in the history of the land and details so let your attorney handle it.

Your problem is that you will have to take legal action to stop him.

Thanks so much Bud. Does it matter that the affidavits state they have used our road since 1964 to access the second parcel? Can they go for adverse possession? We put up signs stating no access to second parcel so the realtor and buyers would know.

Acquiring an easement by prescription requires using another's property in a manner that is open, notorious, adverse, and continuous for a period of fifteen years. Plymouth Canton Community Crier, Inc v Prose, 242 Mich App 676, 679; 619 NW2d 725 (2000); MCL 600.5801. The party claiming a prescriptive easement has the burden to prove that "the use of the defendant's property was of such a character and continued for such a length of time that it ripened into a prescriptive easement." Mulcahy v Verhines, 276 Mich App 693, 699; 742 NW2d 393 (2007). If the dominant estate is later divided, the owner or assignee of any portion of the dominant estate might claim the easement so far as it is applicable to this part of the property as long as an unreasonable burden is not imposed upon the servient estate; the servient estate is not to be burdened to a greater extent than was contemplated at the time of the creation of the easement. See, e.g., Barbaresos v. Casaszar, 325 Mich. 1, 8, 37 N.W.2d 689, 693 (1949).

Your neighbor is apparently trying to argue that the easement was expanded by prescription. However, it's not going to be obvious to a neighboring parcel that the owner of an adjacent ten acres is at times traveling from that ten acres to an adjacent lot, nor would such a use necessarily suggest an intention to try to expand the neighbor's rights under the easement to include access to the adjacent lot. I think it would be a tough case to make. On top of that, even with the claimed use of the easement to access a lot through which an additional lot was accessed, there's a question as to whether the burden on the easement was increased -- I suspect not, but I suspect that the use that a future buyer of the adjoining 70 acres would want to divide and develop the entire 80 acres and massively increase the burden beyond what might plausibly be established even if your neighbor proved a basis for the grant of a prescriptive easement.

Talk to your lawyer about formally notifying your neighbor before the sale that use of the type suggested in his property listing would not be permissible, and that he should not suggest to his prospective buyers that he can grant them right-of-way over your land to access any portion of the additional 70 acres even if it is not divided, and about the possibility of giving similar notice to any eventual buyer. Ideally a buyer will exercise due diligence, but sometimes developers have been known to bulldoze first and ask questions later.

Thank you Mr. Knowitall. I will speak to our lawyer. Hopefully we can settle this.