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BlogsPublications | March 30, 2017
3 minute read

MSC grants leave to hear prescriptive-easement issue with broad implications for real property owners and mortgage lenders

Excluding another from one’s own property is a basic right of ownership.  And it has long been the case this right can be lost after an adjacent property owner uses your property openly, notoriously, adversely, and continuously as an access route for a period of at least 15 years.  When such a right to access has become established, it said that a “prescriptive easement” exists for the benefit of the adjacent property owner, and it is well established that such an easement runs with the land as an “easement appurtenant” to the benefitted property, even if it is not mentioned in a deed.  But does that prescriptive automatically vest after 15 years, or is litigation required to establish it?  The Michigan Supreme Court has granted leave to appeal in Marlette Auto Wash LLC v Van Dyke SC Properties LLC, No. 326486, to answer that question.

In Marlette, the original owner of the car wash used the parking lot of an adjacent shopping center for approximately 15 years and eventually built additional car wash bays that blocked all other access.  He then sold the car wash to another, who defaulted on the mortgage.  The bank received a deed in lieu of foreclosure and then sold the property to the plaintiff in this case, Marlette Auto Wash.  Soon after, the car wash’s original owner purchased the shopping center (through a closely held entity) and began demanding significant payments from Marlette Auto Wash to continue using the parking lot for access.  When Marlette balked, it soon found snow piled up across the way to the car wash.  Marlette sued to enforce its access right.

The trial court found that a prescriptive easement benefiting the car wash had vested a few years before the plaintiff purchased the car wash, and ran with the land thereafter. But the Court of Appeals reversed, holding that Marlette had failed to establish its own continuous use of the parking lot for a period of 15 years, and could not rely on the prescriptive easement that had arisen earlier, because neither the original owner or his defaulting successor had taken legal action to establish the easement.  According to the intermediate appellate court, until the easement is established, the easement must be mentioned in a deed or oral statement to the successor for it to be conveyed with the property that it benefits.  That did not happen here.

Michigan’s highest court will now decide whether this should in fact be the rule in Michigan.  Specifically, it has asked the parties to address “whether open, notorious, adverse, and continuous use of property for at least fifteen years creates a prescriptive easement that is an easement appurtenant, without regard to whether the owner of the dominant estate took legal action to claim the easement.”  Interestingly, the Real Property Law Section of the State Bar of Michigan has taken the position that legal action should be required, while Michigan Bankers Association and Michigan Credit Union League argue it should not.

Disclaimer:  Warner represents Marlette Auto Wash in this Michigan Supreme Court appeal.