In the first blog of this series, we stressed the many reasons an express easement needs to be in writing. One of those is because it conveys an interest in property, so it is subject to the statute of frauds. “An easement is an interest in land that is subject to the statute of frauds.” Forge v. Smith, 458 Mich. 198, 2055, 580 N.W.2d 876 (1998).
So, what is the statute of frauds? It’s a common law concept that specifies that certain agreements must be in writing to be enforceable. When it comes to real property, Michigan has a statute which specifically addresses this:
Every contract for the leasing for a longer period than 1 year, or for the sale of any lands, or any interest in lands, shall be void, unless the contract, or some note or memorandum thereof be in writing, and signed by the party by whom the lease or sale is to be made, or by some person thereunto by him lawfully authorized in writing . . . .
MCL 566.108.
“Get it in writing,” then, is not a mere suggestion. It is required.
Consider the fate of certain backlot (yes, again) owners on Lake Doster in Allegan County. Developers of the man-made lake did grant an easement to a portion of lakefront land for the benefit of the backlots. However, it did not convey any riparian rights, and it did not give an express right to install docks. At the time, the developers granted them permission to install docks, and they did. Years later, the association which acquired the developers’ rights sought to restrict and regulate the installation and construction of docks adjacent to the common area land that was subject to the easement. The backlot owners sued to prevent the new rules from taking effect.
This went all the way to the Michigan Supreme Court, which found the permission granted to the original backlot owners to build docks was merely a license. Hahn v. Lake Doster Lake Assoc., 507 Mich. 975, 959 N.W.2d 711 (2021). Licenses are revocable and convey no interest in land. Michigan does not recognize irrevocable licenses or easements by estoppel. In other words, the backlots could not claim that they incurred damages because of their reliance on representations made during the pendency of a license.
Because the docking rights were not in writing, they were not rights at all. No easement was created.
To prevent this from happening to you, call the attorneys at Dalton & Tomich. We will make sure you get it in writing and that your rights are protected.
