Easements

Creation- Prescription

A prescriptive easement is created much like adverse possession. The elements are that the use of the easement is adverse or hostile, open and notorious, continuous and uninterrupted, for the statutory period, which in Michigan is 15 years.

Scope and Duration of Easements, Remedies

An easement can be expressly created to last for a certain time or to benefit only a certain individual, but those facts may actually create a license. An easement is presumed to last as long as the need for it lasts. An easement holder cannot overburden the servient tenement by significantly increasing or changing the use of the easement. The owner of the servient tenement can restrict all use of the easement except that interferes with the easement holders ability to use the property for the intended purpose of the easement. The remedy for misuse/overburden is NOT termination of the easement, it is an injunction against the misuse/overburden.

Termination- Release

An easement can be expressly terminated, subject to the statute of frauds.

Creation- Implied

An easement can be implied from existing use when an existing lot is divided and one lot continues to access the other lot in a continuous, apparent manner that is reasonably necessary, and expected to continue. An easement can also be implied without existing use when there are subdivision plots or profit aprende.

Termination- Abandonment

An easement can be terminated by abandonment if the easement holder acts in a way that is consistent with abandonment. Merely stating an intent to abandon is not enough.

Termination- Estopple

An easement can be terminated by estopple if the easement holder shows an intent to abandon and the owner of the servient tenement spends money in reasonable reliance on the easement holders representations.

Termination- Prescription

An easement can be terminated if the easement is occupied in a way that prevents the easement holder from using it, adverse, hostile, open and notorious, continuous for the statutory period.

Type- In Gross

An easement is In Gross when there is only a servient tenement, which provides the burden of the easement, and the benefit is provided to some individual(s) or business.

Type- Affirmative

An easement is affirmative when the servient tenement allows some type of activity to occur on the land.

Type- Appurtenant

An easement is appurtenant when there are two parcels of land, a dominant tenement, which receives the benefit of the easement and a servient tenement, which provides the burden of the easement.

Creation- Necessity

An easement is created by necessity when a single lot has been divided and one lot is left with no reasonable access to a main road or utilities without use of the other lot.

Creation- Express

An easement is created expressly when it is included in the deed of the property. The statute of Frauds applies.

Type- Negative

An easement is negative when the servient tenement is restricted from some activity on the land.

Termination- Expiration of Necessity/ Stated Conditions

If the necessity or stated conditions cease to exist the easement can be terminated.

Termination- Condemnation

If the property is condemned the easement is terminated.

Merger of properties/unity of ownership

When a servient tenement and a dominant tenement merge the easement is extinguished. If the properties are later re-divided the easement does NOT automatically revive itself.