In today’s day and age, it is almost unheard of to own a parcel of real estate that is not in some way encumbered by an easement. An easement is an ownership interest in real property that grants the holder of the easement the right to use another’s property for a limited purpose. For example, the overwhelming majority of real estate is encumbered with easements in favor of utilities. These types of easements grant utility companies the right to enter onto the property for limited purposes such as maintaining and repairing equipment. In other cases, the easement may grant the utility the right to maintain a pole or meter on the property. Other common easements grant the holder the right to cross over another’s property for the purpose of accessing a driveway or public road.
In the context of living in a condominium, additional easements are common. In fact, all condominiums are required to have certain easements pursuant to the Michigan Condominium Act and Administrative Rules. Some examples of these required easements come from the Michigan Administrative Rules interpreting the Condominium Act. Administrative Rule 301(5) states as follows:
(5) Pursuant to sections 35, 40, and 44 of the act, a master deed shall provide for the following easements:
(a) Reciprocal easements for a change of boundaries of units due to shifting, settling, or moving of a building in the condominium project.
(b) Easements for the installation, maintenance, and service for all utilities, including light, heat, power, sewer, water, and communications.
(c) If the project is not served by an existing municipal water and sewage system, and any component of the system is not located on property to be owned by the condominium, an easement shall be obtained, or other suitable arrangement made, for the repair and maintenance of such components, so long as the system continues to be used by the project.
(d) Such other easements as may be necessary for continued use and enjoyment of the project.
Accordingly, if you live in a condominium in Michigan, your ownership interest will undoubtedly be encumbered by easements, many of which should be delineated in the master deed.
Pursuant to MCL 559.140, certain easements exist as a matter of law when a portion of a condominium unit, or common element, encroaches upon another unit. This statute was amended on January 2, 2001, however, the prior version of MCL 559.140 stated as follows:
To the extent that a condominium unit or common element encroaches on any other condominium unit or common element, whether by reason of any deviation from the plans in the construction, repair, renovation, restoration, or replacement of any improvement, or by reason of the settling or shifting of any land or improvement, a valid easement for the encroachment shall exist.
A plain reading of the statute indicates that these types of easements exist as a matter of law. However, in situations when a condominium association has become aware that one unit is encroaching upon another unit, it makes sense that the association would want to record an express easement in the register of deeds to put all interested parties on notice.
A condominium association’s right to record such an easement was the subject of a lawsuit in Rossow v Brentwood Farms Dev, Inc, 251 Mich App 652; 651 NW2d 458; (2002). In Rossow, a co-owner constructed a building on his unit (unit 83) in the condominium. After a survey was performed, it was discovered that the building constructed on unit 83 encroached upon an adjacent unit (unit 82) by approximately 9 feet. The condominium association recorded an easement over unit 82 in favor of unit 83 in order to permit the owner of unit 83 to access the driveway to his unit. The owners of unit 82 filed a lawsuit against the association and against the owners of unit 83 claiming slander of title. To resolve the dispute, the Court relied on the prior version of MCL 559.140 as well as a corresponding provision in the master deed of the condominium. Accordingly, the Court held that the association had the right to record the easement without the consent of the owners of unit 82.
Importantly, MCL 559.140 was amended on January 2, 2001, after the facts of the Rossow case had occurred. The new statute adds one sentence at the end which reads as follows:
This section shall not be construed to allow or permit any encroachment upon, or an easement for an encroachment upon, units described in the master deed as being comprised of land and/or airspace above and/or below said land, without the consent of the co-owner of the unit to be burdened by the encroachment or easement.
The added language appears to limit the ability of a condominium association to record such an easement upon its own volition. While there is no published case law addressing this situation under the new statute, there is another case with substantially similar facts to Rossow which was decided in 2010. In Pond v Habian, unpublished opinion per curiam of the Court of Appeals, issued Apr. 13, 2010 (Docket No. 289290), the Court of Appeals held in favor of a co-owner whose driveway encroached upon a portion of an adjacent co-owner’s unit. The Pond Court relied on the prior version of MCL 559.140 because the encroachment occurred prior to the amendment of the statute. Specifically, the Pond Court held:
While the encroachment was not discovered until 2007, the developer recorded the master deed for Golf View Lake Estates on May 24, 1989, and the residential structures were constructed on their respective units by April 2000. Because both events occurred before the effective date of the 2001 amendment of MCL 559.140, the original statute applies to the facts of this case.
Both the Pond and Rossow opinions indicate that they may have had a different outcome had the new statute been in effect at the time the pertinent events occurred. It is clear that courts will continue to rely on the previous version of the statute if the requisite events occurred prior to January 2, 2001, the date the amended version of MCL 559.140 took effect. Moving forward however, the right of a condominium association to unilaterally record easements over one co-owner’s unit in favor of another co-owner appears to have been limited.
Because of the additional language added to the current version of MCL 559.140 stating “This section shall not be construed to allow or permit any encroachment upon, or an easement for an encroachment upon, units described in the master deed … without the consent of the co-owner of the unit to be burdened by the encroachment or easement”, it is crucial to have appropriate language in a condominium’s initial master deed which identifies easements created pursuant to MCL 559.140. If a master deed contains the appropriate language, there is a strong argument to be made that all co-owners purchasing a unit after the recordation of said master deed have consented to the easement. As a result, a condominium association will have a strong case in the event it decides to record an easement against one co-owner’s property in favor of another.
Brandan A. Hallaq is an attorney with Hirzel Law, PLC where he dedicates the majority of his practice to representing condominium associations and homeowners associations. He litigates cases involving defective construction, contract disputes, shareholder/member disputes, quiet title actions to determine interests in property, enforcement of restrictive covenants, real estate foreclosure actions, and bankruptcy matters representing creditors. He also has experience preparing documents for business and real estate transactions including purchase agreements, franchise agreements, loan/financing documents and commercial and residential leases and mortgages. In each year from 2018 through 2020, he has been recognized as a Rising Star in the area of real estate law by Super Lawyers Magazine, a designation that is given to no more than 2.5% of the attorneys in the State of Michigan each year. Mr. Hallaq obtained his Juris Doctor degree, cum laude, from Wayne State University Law School where he served as an editor on the Wayne Law Review. He can be reached at (248) 480-8758 or at email@example.com.