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What is an Exclusive Easement?

In recent years, there have been many Michigan Court of Appeals decisions dealing with easements. Often, the dispute arises due to poor drafting of the initial easement document. When the easement document is ambiguous, and the parties cannot agree to a resolution, it is left up to the courts to determine the scope and meaning of the terms.

One term that is occasionally attached to easements is the word “exclusive.” For example, Smith grants Jones an exclusive easement over the northern 10 feet of her property for ingress and egress. In this context, what is the meaning of “exclusive?” Does it mean exclusive as to third parties or other potential easement holders, or does it mean exclusive as to the underlying fee holder also?

Recently, the Michigan Court of Appeals recently confirmed the meaning of the term “exclusive” in the easement context. In Beggs v Freed, the court considered the argument of whether the word “exclusive” in an easement document was ambiguous and therefore subject to extrinsic evidence to prove its meaning.

In interpreting the easement, the court determined that the term “exclusive” was not ambiguous. The court stated:

[A]n exclusive easement is an unusual interest in land; it has been said to amount to almost a conveyance of the fee. The grant of an exclusive easement conveys unfettered rights to the owner of the easement to use that easement for purposes specified in the grant to the exclusion of all others . . . . [E]xclusive easements are not generally favored by the courts. Nevertheless, if parties agree to do so, exclusive easements can be created.

The court found that an exclusive easement conveyed the right to exclude all others, even the original grantor fee owner. Since the term was not ambiguous, the court found there was no need to introduce extrinsic evidence to determine its meaning.

Property owners must be aware of the meaning of terms when conveying or receiving an easement. The Court of Appeals was clear: an exclusive easement gives the grantee the right to exclude even the original grantor from the easement area. For this reason, it will rarely be advisable to convey an exclusive easement over one’s property.

The attorneys at Dalton & Tomich are experienced in drafting and enforcing easements. If you have questions regarding easements, please do not hesitate to contact us. We would be happy to speak with you.

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