Plat Gave Easement Over Park, Not Fee Simple Rights to Owners in Subdivision
Ownership and use of common areas in platted subdivisions is one of the more complicated areas of real estate law and has been the subject of conflicting caselaw in the State of Michigan. In Otto v Batdorfer, unpublished per curiam opinion of the Court of Appeals, issued February 17, 2022 (Docket No. 355936), the Michigan Court of Appeals analyzed this issue and provided guidance on ownership of common areas that are dedicated to the lot owners (private dedications). In Otto, the Plaintiffs were claiming fee title (ownership) to certain common areas and a park in a platted subdivision which were “dedicated to the use of the lot owners in said Subdivision.” The Defendants in Otto asserted that the Plaintiffs did not have ownership of these common areas, but rather, that all lot owners in the subdivision held common ownership of these areas.
The subdivision in Otto was platted in 1925. The Michigan Land Division Act, MCL 560.101 et seq. became effective January 1, 1968 and expressly authorizes dedications of land for private as well as public use. For subdivisions that were platted after the effective date of the Land Division Act, common areas, parks, and roads that are dedicated “to the use of the lot owners” are deemed to be owned collectively by the lot owners within the subdivision. See MCL 560.253(1) and Martin v Beldean, 469 Mich 547; 677 NW2d 312 (2004).
In Otto, the Court explained that the creation of a private dedication of land, as opposed to a dedication to the public, such as for public parks and roads, was not explicitly covered by statute until the 1967 enactment of the Land Division Act. From 1925 through 1967, the predecessor statute was held to implicitly permit private dedications, and before 1925, statutes were silent about the propriety of such dedications. However, for private dedications of common areas in plats recorded prior to the Land Division Act, lot owners within a platted subdivision are deemed to be granted easement rights to use the common areas with all other lot owners.
In Morse v Colitti, 317 Mich App 526, 543; 896 NW2d 15 (2016), the Michigan Court of Appeals held that in the context of a pre-1967 plat that dedicated certain land “to the use of the present and future lot owners,” the plat “conveys not only an easement to lot owners generally, but an additional fee interest to the lot owners whose property lies adjacent to” the dedicated property. The reasoning for this holding was based on the “general rule” that, unless a contrary intent appears, the owners of land abutting a street are presumed to own the fee in the street to the center, subject to the public easement. Based on this “general rule”, the Morse Court held that fee ownership in a platted “walkway” was owned by the abutting lot owners, who each owned one-half of the “walkway” from their abutting lots to the center of the “walkway.”
The disputed common areas in Otto were abutted by the lots owned by the Plaintiffs. The Otto Court agreed with the Plaintiffs’ position that, as the owners of land adjacent to the common areas in dispute, Plaintiffs “remain fee owners of the parkland under plat language dedicating it for the ‘use of’ the subdivision’s lot owners without explicitly purporting to transfer ownership to the latter.” The Otto Court further held: “the plat clearly granted defendants only easement rights over the disputed property, and not fee title, which plaintiffs, as the owners of lots adjacent to the disputed parcels, retain subject to the easements.”
The Otto opinion, while unpublished and thus nonbinding legal authority, could serve as persuasive authority to support the position that lot owners in subdivisions that were platted prior to 1968 may have a claim of ownership of common areas that directly abut their lots, even when said common areas are dedicated to the use of all lot owners in the subdivision. However, in 2007, the Michigan Court of Appeals held as follows in another unpublished (and nonbinding) opinion:
Notably, in cases involving public dedication of land, once the property has been dedicated and the original owner, within a defined time period, takes no action to reassert his rights to the parcel, the original property owner is deemed to retain no interest in the land. … However, no similar preclusion has been discovered in case law pertaining to the dedication of private property. … It also cannot be determined from the lower court record whether any heirs or assigns of the Garchows’ retained a property interest in any of the other lots within the subdivision as a means to determine the extent and nature of their rights as lot owners. …
Turner v Zimmerman, unpublished per curiam opinion of the Court of Appeals, issued May 1, 2007 (Docket No. 265008), p 8. Therefore, there appears to be a conflict in these opinions as to whether or not ownership of common areas in a plat that are dedicated to the use of the lot owners prior to 1968 are retained by the proprietor of said plat or are conveyed to the lot owners whose lots are adjacent to said common areas. In any event, if certain lot owners have a claim of ownership to the common areas, the other lot owners in the subdivision would still have easement rights to the common areas as set forth in the private dedication in plats recorded prior to 1968.
Disputes relating to the ownership and use of common areas in platted subdivisions come up frequently (particularly in subdivisions that abut or include lakes). This area of the law is complicated and requires a detailed review of title work along with a refined knowledge of all applicable statutes and conflicting caselaw that exists. If a dispute regarding common areas in a subdivision arises, property owners should consult with an experienced real estate attorney to assist.
Brandan A. Hallaq is a Senior Attorney with 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, franchise agreements, loan/financing documents, and commercial and residential leases and mortgages. In each year from 2018 through 2023, 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. 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, and he has been recognized in the Best Lawyers in America: “Ones to Watch” list for professional excellence in real estate law in each year from 2021 through 2023. 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) 478-1800 or at bhallaq@hirzellaw.com.
