Full question:
Our home/land is land locked and we have a private easement (legal and documented) over a neighboring parcel. The easement is 24'; however the previous owners (builders) of both parcels did not survey the property prior to establishing the driveway. A survey has shown that our driveway exceeds the easement. The driveway has been in place since before 1996. We purchased the property in 2001 with the driveway already in place. Do we have to move it now? Can the owner of the parcel where the easement exist move the driveway without or approval or permission?
- Category: Real Property
- Subcategory: Easements
- Date:
- State: Michigan
Answer:
There are basically two types of easements- easements in gross and appurtenant easements. Easements in gross are personal rights given to individuals or specific groups. Once the easement owner dies or, in the case of corporations, dissolves, the easement terminates. Appurtenant easements are more permanent and are given to both the property and its owner. If the property owner with an easement sells the property, the new buyer gains the easement rights that belong with the property. To be a legal appurtenant easement, the properties involved must be adjacent to each other and must be owned by separate entities.
When the title is transferred, the easement appurtenant typically remains with the property. This type of easement runs with the land; which means that if the property is bought or sold, it is bought or sold with the easement in place. The easement essentially becomes part of the legal description.
To terminate an easement, a condition for the purpose of the easement must have changed, such as:
• Easement's purpose no longer exists
• Ownership of the easement and of the land where the easement is located merges into one owner
• Land owner releases the easement
• Easement is abandoned
• Nonuse (of a prescriptive easement)
• Adverse possession by the owner of the land where the easement is located
• Court judgmrnt in a quiet title action
• Misuse of the easement
Misuse of an easement does not usually terminate the easement but may give rise to claims for legal or equitable remedies. Legal proceedings may be necessary to interpret and determine the scope of easements.
An easement by necessity is allowed by law for the full enjoyment of property. An easement to provide access over adjacent property if crossing that property is absolutely necessary to reach a landlocked parcel would be one granted by necessity. Parcels without access to a public way may have an easement of access over adjacent land, if crossing that land is absolutely necessary to reach the landlocked parcel. This easement is extinguished upon termination of the necessity (for example, if a new public road is built adjacent to the landlocked tenement). An easement by necessity arises only when "strictly necessary".
However, the landlocked owner might be required to obtain a license for a new commercial use or to cause damage during access (e.g., a logging road or blazed trails). Some states disfavor granting easements by necessity when the need was created by the owner's own actions, say, by selling off plots of land resulting in a landlocked parcel.
Misuse of an easement does not usually terminate the easement but may give rise to claims for legal or equitable remedies. Legal proceedings may be necessary to interpret and determine the scope of easements.
The answer will depend on the facts and wording and nature of the current easement. It is possible the easement may need to be amended, or that the a new use would terminate the easement and require a new easement to be created. I suggest contacting a local attorney who can review all of the facts and documents involved.
This content is for informational purposes only and is not legal advice. Legal statutes mentioned reflect the law at the time the content was written and may no longer be current. Always verify the latest version of the law before relying on it.
