Prescriptive Easements and Use of Common Elements by Adjoining Property Owners
On December 29, 2022, the Michigan Court of Appeals issued an unpublished opinion in the matter of Alexander Queen v Woodbury Green Condominium Association, unpublished per curiam opinion of the Court of Appeals, issued December 29, 2022 (Docket No. 359092) addressing the issue of a prescriptive easement being claimed by a property owner outside of a condominium project over a portion of the common element road in the condominium. In Queen, a property owner (who was not part of the condominium) had been crossing over approximately 11 feet of a common element road in a neighboring condominium project for ingress and egress from his property for over 30 years. The property owner did not have an express written easement granting the right to cross over the condominium association’s road.
The property was sold to a new owner in or around November 2020. The new owner continued to cross over the common element road in the Condominium. Following the sale of the property, the condominium association sent the new property owner a letter demanding payment in exchange for the granting of an express easement over the association’s road. The new property owner filed a lawsuit against the condominium association claiming an easement by prescription as the road had been used by the previous owner of the adjacent property for over 30 years.
An easement “represents the right to use another’s land for a specified purpose.” Plymouth Canton Community Crier, Inc v Prose, 242 Mich App 676, 678; 619 NW2d 725 (2000). While most easements are granted expressly and in writing, it is possible to obtain certain easement rights without a signed writing, such as easements by necessity and easements by prescription. An easement by prescription is often referred to as an easement obtained by adverse possession and results from the “use of another’s property that is open, notorious, adverse, and continuous for a period of [15] years.” Id. at 679; see also MCL 600.5801(4).
Under Michigan law, the same elements that must be established to acquire ownership of land through adverse possession must be established to acquire an easement by prescription, with the only difference being the element of “exclusivity” in an adverse possession claim is not required for an easement by prescription. “When a prescriptive easement vests with the claimant’s predecessors in interest, the easement is appurtenant and transfers to subsequent owners in the property’s chain of title without the need for the subsequent owner to establish privity of estate.” Marlette Auto Wash, LLC v Van Dyke SC Props, LLC, 501 Mich 192, 211; 912 NW2d 161 (2018).
In Queen, the Wayne County Circuit Court initially granted summary disposition and ruled in favor of the plaintiff (the new property owner) holding that the plaintiff established the necessary elements to obtain an easement by prescription. Specifically, the trial court held: “the testimony is clear that this has been the use for at least 30 years, if not longer” and that the Court did not believe “that there’s any likelihood that further discovery would yield anything to support the nonmoving party [the condominium association] prevailing because the Court has everything here.”
The condominium association appealed and argued that the trial court erred in granting summary disposition before allowing the parties to complete discovery as there were genuine issues of material fact regarding certain elements of the claim for an easement by prescription. The Court of Appeals agreed with the condominium association and held that “a genuine issue of material fact existed over whether plaintiff established the ‘hostile’ or ‘adverse’ element of a prescriptive easement.” In particular, the Court of Appeals held that there was potential evidence to suggest that use of the common element road by the adjacent property owner was done with permission of the condominium association in the past. This fact, if true, would eliminate the element of “hostility” and defeat a claim for an easement by prescription. In Michigan, “Mere permissive use of another’s property, however, will not create a prescriptive easement.” Plymouth Canton, 242 Mich App at 679.
The Michigan Court of Appeals ultimately remanded the case back down to the Wayne County Circuit Court, with the parties presumably being given an opportunity to complete discovery on each of the factual issues needed to establish the claim to an easement by prescription. While the case was ultimately remanded back to the trial court for further discovery and fact-finding, the Queen case illustrates an important lesson to community associations (and all property owners in general) that the use of your property by an unauthorized individual for a period of time can potentially result in the creation of an easement by prescription. Community associations and property owners should be cautious of unauthorized uses of their property by third parties. In addition to the concern of potentially losing property rights (through adverse possession or an easement by prescription) property owners face potential liability any time someone uses their property. If a community association or property owner discovers an unauthorized use of its property by a third-party, an experienced real estate attorney should be consulted to advise on how to protect property rights and minimize potential liability.
Brandan A. Hallaq is a Member of Hirzel Law, PLC where 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. Mr. Hallaq is also a licensed Real Estate Broker in the State of Michigan and leads the real estate transactions department at Hirzel Law, PLC where he negotiates and prepares the necessary documents for business and real estate transactions, including purchase agreements, loan/financing documents, and commercial and residential leases and mortgages. In each year from 2018 through 2024, 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. In the years 2021 through 2025, he has been recognized in the Best Lawyers in America: “Ones to Watch” list for professional excellence in categories including construction law, real estate law, and real estate litigation. He was also recognized as a 2020 Up & Coming Lawyer by Michigan Lawyer’s Weekly, an award given to no more than 30 attorneys in the state 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. Prior to joining Hirzel Law, PLC, Mr. Hallaq worked for a Federal Judge and in a Fortune 500 corporation’s in-house legal department. He can be reached at (248) 986-2290 or at bhallaq@hirzellaw.com.
