Last month, we wrote about prescriptive easements, which arise when one party claims a right to use another’s property and has done so in an open, notorious, continuous, and adverse way for at least 15 years. But what if a prior owner used the easement but never made legal claim to it, and now somebody else now uses and claims it? What if the chain of title is messed up enough to prevent privity of estate between the prior and current owners? Doesn’t that break up the 15 years?
The Supreme Court of Michigan says no, it does not. In Marlette Auto Wash, LLC v. Van Dyke SC Properties, LLC, 501 Mich. 192 (2018), the Court found that a prior owner was not required to make legal claim to an easement for it to vest. In other words, if all of the elements are met—open, notorious, continuous, and adverse for at least 15 years—the easement vests and then runs with the property. “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.” Id. at 203-204.
The facts of this case include an interesting twist. A car wash was established in 1990 and began using an adjoining parking lot for customers to access the business. There was another entrance off a busy road, but it required a dangerous turn. One of the original owners of the car wash, years after selling it, ended up owning the parking lot. He then demanded $1,500 per month from the car wash to use the parking lot for access. When they refused, he plowed heavy snow on the car wash’s property, eliminating access and shutting down the business. He also threatened to park trailers at the edge of the property to block access.
The car wash sued on the theory of prescriptive easement. Its owners had not owned the car wash for 15 years, but more than 15 years of open, notorious, continuous, and adverse use, even by its predecessors, established the easement, or so it claimed. The trial court agreed.
However, the Michigan Court of Appeals did not. It accepted the parking lot owner’s argument that a) the car wash owners had not owned it for 15 years, and b) they could not prove privity of estate as to other, prior owners. There had been a foreclosure and ownership by a bank’s property holding company in between, which destroyed privity. The parking lot owner (and former car wash owner) even claimed that the car wash was seeking a legal right to secret easements that subsequent purchasers of the parking lot wouldn’t know about. The Supreme Court rejected this argument because he used to enjoy use of the easement himself. It certainly was no secret!
The Court found that showing privity of estate was not necessary when the easement had already vested in favor of the prior owner. Since the prescriptive use began in 1990, the easement vested in 2005. The car wash owner bought the property with the vested easement in place and continued to use it. The parking owner bought the property subject to the easement, with knowledge of the easement, and apparently with a plan to make money off the easement.
So, even if no prior owned had made a legal claim to the easement, and even if the current car wash owners could not prove privity of estate with the prior owners, the vested easement ran with the property.
Protect your interests in any real property dispute, including prescriptive easement issues. Contact the attorneys at Dalton & Tomich today.
NB: This article does not constitute legal advice and does not create an attorney-client relationship with any reader(s).
