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  1. #1
    Join Date
    Jul 2020
    Location
    Upper Peninsula Michigan
    Posts
    3

    Default My Garage is on an Granted Easement

    My question involves real estate located in the State of: Michigan

    We live in a small 4 lot development where we share a common private access road that crosses the East end of our properties. Our house is next to last on the gravel road (about 18' wide) and the East 25' of our property is driveway. The last neighbor to the North crosses out property for ingress/egress and has a 12' wide driveway that runs off of our driveway some 20' to their property and garage. Our deed has no mention of any easement granted for the last neighbor's access, but as this has been a long term situation with neighbor, and he would otherwise be landlocked, we assumed that he could attain an easement of necessity if needed. In any case we were fine with the situation and had no issue with his use of the driveway.

    Now, after some 5 years in our house we discover from our North neighbor that they were granted an easement by the original landowner at time of subdivision. We went to the courthouse and got a copy of this. The surprising fact to us (other than fact that the easement even exists) is that the easement reads "...easement for ingress, egress, access and construction and maintenance of a roadway along the East Sixty-six feet of (the remaining lots)". Our lot is only 0.6 acres and 66 feet from the East property line is a large portion of our lot that ends up including our entire garage and an adjacent parking pad.

    I am very concerned. What is the ramifications of our garage being on the easement? Do we have any protection to prevent use of more of the easement than is currently used? Does our title insurance (having not indicated the easement on warranty deed) have any liability on the matter? What the heck were the original land owners thinking granting a 66 foot wide access easement? What do we do now?

  2. #2
    Join Date
    Sep 2010
    Posts
    19,841

    Default Re: My Garage is on an Granted Easement

    Understand that there is no single "deed" that applies to property. The title is a chain of transfers going back in history. It would be unusual for the deed that granted the property to you to have mentioned specific easements. To find these requires a title search to find where the easement was granted originally. This would have been backed up with owner's title insurance to warrant what was in it.

    If your garage interferes with the rights granted in the easement, you could be held responsible. You might be able to find another access to the dominant tenant, he may be within his rights to tell you to stop encumbering the easement (i.e., get rid of the garage). You should consult a land use lawyer to determine just what has happened and what your options are.

  3. #3
    Join Date
    Jul 2020
    Location
    Upper Peninsula Michigan
    Posts
    3

    Default Re: My Garage is on an Granted Easement

    Thanks for response. Unfortunately the title search performed when we purchased failed to reveal this easement. Will need to see how my title insurance comes into play on this matter. And yes, looks like we need to be consulting a land use lawyer.

    Wondering about the language versus intent of the easement. By that I mean if conditions are allowing for unfettered ingress and egress with a driveway width of say 15 feet, is there really any remaining rights to the remainder of the 66 foot width? Does the dominant tenant have to have a valid need to use the remainder of the easement (i.e., "needs" a 66 foot wide driveway) in order to enforce the easement?

  4. #4
    Join Date
    Oct 2006
    Posts
    16,382

    Default Re: My Garage is on an Granted Easement

    Quote Quoting Dennis.G
    View Post
    Thanks for response. Unfortunately the title search performed when we purchased failed to reveal this easement. Will need to see how my title insurance comes into play on this matter. And yes, looks like we need to be consulting a land use lawyer.

    Wondering about the language versus intent of the easement. By that I mean if conditions are allowing for unfettered ingress and egress with a driveway width of say 15 feet, is there really any remaining rights to the remainder of the 66 foot width? Does the dominant tenant have to have a valid need to use the remainder of the easement (i.e., "needs" a 66 foot wide driveway) in order to enforce the easement?
    That is why you need to consult a local land use attorney. In my personal opinion it would be necessary for the dominant tenant to prove that your garage impeded their ability to use the easement as granted. It's still your land, you still get to use it as long as you don't impede their granted rights. A local attorney will be in a better position to give you a definitive answer.

  5. #5
    Join Date
    Nov 2013
    Posts
    6,994

    Default Re: My Garage is on an Granted Easement

    Quote Quoting Dennis.G
    View Post
    My question involves real estate located in the State of: Michigan

    We live in a small 4 lot development where we share a common private access road that crosses the East end of our properties. Our house is next to last on the gravel road (about 18' wide) and the East 25' of our property is driveway. The last neighbor to the North crosses out property for ingress/egress and has a 12' wide driveway that runs off of our driveway some 20' to their property and garage. Our deed has no mention of any easement granted for the last neighbor's access, but as this has been a long term situation with neighbor, and he would otherwise be landlocked, we assumed that he could attain an easement of necessity if needed. In any case we were fine with the situation and had no issue with his use of the driveway.

    Now, after some 5 years in our house we discover from our North neighbor that they were granted an easement by the original landowner at time of subdivision. We went to the courthouse and got a copy of this. The surprising fact to us (other than fact that the easement even exists) is that the easement reads "...easement for ingress, egress, access and construction and maintenance of a roadway along the East Sixty-six feet of (the remaining lots)". Our lot is only 0.6 acres and 66 feet from the East property line is a large portion of our lot that ends up including our entire garage and an adjacent parking pad.

    I am very concerned. What is the ramifications of our garage being on the easement? Do we have any protection to prevent use of more of the easement than is currently used? Does our title insurance (having not indicated the easement on warranty deed) have any liability on the matter? What the heck were the original land owners thinking granting a 66 foot wide access easement? What do we do now?
    You have a real mess on your hands and I agree with previous posters that you need an attorney to sort things out.

    Title companies issue two type of policies. One is a lender policy that protects the lender on a mortgage (even though you pay for it) and the other is a buyer policy that protects the buyer. So, with respect to the title policy, do you have a buyer policy? But it may not matter because missing such a large servitude (the easement grant) on your property made the buy price much higher than it should have been had the servitude been reported. So if you have a mortgage let you lender know what is going on.

    What is the issue now? Is it that the neighbor is just telling you that your garage is on the easement or does the neighbor want to do something with the easement? Repair it, make it into a road, or something else? That all matters.

    The grant language that you quoted is clear enough that he has the right to use the easement for ingress, egress, regress, construction and maintenance. There is a big difference between construction and maintenance as defined by the Michigan courts. But the grant stipulates both. That is not good for you.

    And I am sorry to tell you that in Michigan as in most if not all states the dominant estate (the neighbor) gets to use the entire easement for the purpose of the grant. So even though the neighbor is only using 12' of that easement now, they have the right to use all 66 feet of it for the purpose of ingress and egress. Whether a court would determine that your garage impacts the use of the easement for its intended purpose is a question that will need to be answered.

    What is an important fact that will have to be determined is what was the intent of the grantor and grantee in granting a 66' wide easement for the purposes of only ingress and egress. That would have to be determined in a quiet title law suit.

    I think something is missing in all of this and I have to ask. The title search indicated that there was no servitude on the property. No granted easement no grant by subdivision plat. So how was it that when you saw the property and this 12' wide driveway on the property leading to your neighbor's property it didn't say something isn't right here? The neighbor had a road across the property you were going to purchase and you didn't ask, "what is this road doing across the property?"

    Good luck.

  6. #6
    Join Date
    Jul 2020
    Location
    Upper Peninsula Michigan
    Posts
    3

    Default Re: My Garage is on an Granted Easement

    Thanks again for responses to this thread. Responding to questions asked:
    Title policy: We were issues an Owner's Policy of Title Insurance. Property was paid for in cash with no lender.
    Purpose of 66' wide easement: Complete mystery. Our granted easement to access our property is 33' wide across the other properties to the South, which even there I though was more than needed as the private road is only about 15' wide plus maybe another 6' in drainage ditches. There are no other landlocked properties beyond our Northern neighbor (dominant tenant) and so we are only talking about a driveway to a single family home in his case.
    What is issue now: Really there is nothing our neighbor has said or is planning that is impacting the current situation. We would not have even known about the easement unless it had come up in casual conversation with neighbor (we had a survey done to verify property lines before installing a dog fence and the easement came up while talking to neighbor about our plans - BTW the fence does not cross any of the easement).
    As far as why we did not question existence of driveway across our property: Well shame on me I guess. We were mostly concerned about our legal ingress/egress rights to our property at the time. This is a very rural area and it is not uncommon for there to be informal access across properties to be allowed by land owners without any formal easements. We should have been more concerned at time of purchase, but frankly put faith in the title company to let us know if there was a real problem.
    Again, there is no real immediate issue facing us at this time in regards to the easement, but our discovery that our garage is located on a granted easement is very upsetting and presents grave concerns regarding the value of our property and possible actions that could be taken by our neighbor in the future. I do agree with the good advice that we will need a land use lawyer to help us resolve this issue.

  7. #7
    Join Date
    Oct 2007
    Location
    Ohio
    Posts
    2,584

    Default Re: My Garage is on an Granted Easement

    I agree that it is best to consult an attorney in the matter.

    The attorney will have a variety of defenses to explore. One of the first will be to determine the date of the creation of the easement, and compare that with the date of the commencement of construction of the garage, and then determine the time period where the garage was permitted to be constructed and used in full public view without objection or comment from the owner of the easement.
    Resistance is not futile; it is voltage divided by current.

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