What is a Private Road Easement?
A private road easement is a legal grant allowing the use of a designated roadway, path, or track for transportation across private property. In Michigan, private road easements are often created when a deed to a specific parcel of land is provided to another individual without explicit mention of access rights to another parcel of land. These rights of way provide access to adjoining neighbors and to landlocked parcels of land, i.e. a lot that is surrounded by land that is not owned by the owner of the lot.
The purpose of such easements is to give the holder(s) of the easement specific rights of use in order to access their property when no obvious legal right exists . The use of such easements (and the reason for their existence) may vary significantly; for example, certain private road easements may grant access to real estate near a body of water and occasion the need for a shared dock, pier, or well.
In Michigan, private road easements are sometimes used to correct historic conveyance issues related to parcel access. Similarly, an easement or easements may be established in order to provide a developer with access to a public road in the planning and development of residential subdivisions.
Easement Law in Michigan
Michigan’s constitution vests statutory authority in counties and townships to regulate roads, roadways, and common road maintenance [2015 PA 240]. This authority comes with various restrictions, regulations, and guidelines. In addition, Michigan’s case law establishes general rules that apply to private road easements.
Like any contract or easement, a private easement for a roadway in Michigan is ultimately limited by the language agreed upon by the parties. Michigan applies strict rules of construction when interpreting words and phrases so as to ascribe the plain meaning to those terms. Still, there are a number of cases that discuss how courts of equity generally enforce either private parties’ or public agencies’ obligations concerning private roads. Michigan courts have recognized several features of private road easements.
In Michigan, an easement granted for general road purposes must provide access to the entire parcel to which it is appurtenant. The grantee in such an easement has a right of access to the entire parcel, including the remainder even if the roadway’s language restricts the easement’s use to a specific location. In Michigan, the extent of an easement’s coverage depends exclusively on the size of the entire parcel superimposed on the estate burdened by the easement.
Conversely, when an easement grants specific rights to cross a grantor’s parcel, it will be strictly construed. In such cases, the courts will only enforce an easement to the extent it was written. Courts generally examine the language used to create the easement to determine whether the easement is limited by geographic scope or use.
Easements are a creature of contract. They can be created by express easement, grant, prescription, implication, reservation, party wall, and statutory easement. Easements may be affirmative (providing a party with a right to enter upon and make use of another’s property) or negative (obligating the landowner to refrain from certain uses of the property). Whenever Michigan’s statutes address an easement, they will usually use the word "easement" as opposed to "right-of-way," but the two are considered synonymous in Michigan.
The scope of road easements in Michigan is determined by the underlying instrument, not the width of the roadway. Easements for roadways are strictly construed. The easement provides access to the area, but does not give the public the right to remove trees or establish a road where none existed before.
In Michigan, where an easement is requested for the purposes of development, a developer must comply with the state’s Zoning Enabling Act and the State’s Historic Preservation Act. State law governs the creation of private easements for roads.
Easement Holder Rights and Responsibilities
Once an individual has been granted a private road easement, the rights typically granted to the easement holder (dominant estate) will be governed by the language of the easement and determined by Michigan case law. For instance, a dominant estate typically has the right to go upon the easement to construct a private road and maintain it. Case law has determined the dominant estate has an obligation to maintain the private road in a reasonably navigable condition for the benefit of the easement holder. Michigan courts have determined that no duty exists for a dominant estate to repair the private road due to actions of the dominant estate (i.e., potholes from excessive truck traffic). However, if the dominant estate abuses the right to use the easement, the courts have held the other property owners can seek injunctive relief against the dominant estate. Additionally, the holder of a private road easement cannot enjoin other individuals on the servient estate from using the private access road.
Easement Disputes and Resolution
As private road easements in Michigan inherently involve multiple parties, it is no surprise that disputes can arise from their use and maintenance. Potential conflicts can be broadly categorized into two types: those involving use rights and those regarding maintenance and liability. Use right disputes are heated arguments centering around whether a particular party is allowed to use the road and if so, how they may do so. Frequently, this will involve interpretation of the grant, but more often than not, issues will arise as a result of the land owners withholding their consent for a particular use or due to an improper use. Party and neighbor disputes are more common than neighbors would care to admit and at their core resolve down to incompatible expectations for how the road should be used. Unfortunately, these types of disagreements can fester and escalate quickly into ugly and costly litigation over the use of a single road. Other related though less contentious conflicts involve road maintenance and liability. The provisions for who is to maintain the road are typically set out in the grant and unless there are gaps and deficiencies in the easement, the answer should be clear. But anyone who has dealt with homeowners associations is also aware that this type of dispute can become contentious if not properly managed ahead of time. This underscores the importance of spelling out maintenance obligations when drafting a grant for a private road easement. Indeed, the provisions relating to use rights, maintenance, and liability are the three most important provisions of a private road easement and are critical to ensuring a happy experience. As with most real estate conflicts, the law favors amicable and out of court resolutions that find their way to settlement as opposed to full blown litigation. This is perhaps even more true in Michigan when it comes to these types of disputes. In fact, there are several pretrial resolutions or alternative dispute resolution (ADR) tools that may be available to you depending on how you wish to proceed. Although not universally applicable, one potential favored method for resolving conflicts is facilitative mediation. Mediations are typically ordered by the courts in advance of a trial and are meant to aid the parties in reaching an amicable resolution to their differences and to minimize the value of motions, issues, and evidence that must be considered at the trial. Often done over the course of a half day or full day early in the dispute process, the goal of a mediation is to find common ground before all possibilities have been weighed. Settlement of the differences can occur if the parties are satisfied with the proposed resolution and sign the terms that are usually reduced to a settlement agreement between them. Although not legally binding as a contract until signed, a settlement conclusions a private road easement dispute if all parties agree. Mediation is far from the only option. Tailored to the dispute, the court can also refer the parties to other pretrial resolutions such as mediation/arbitration, case evaluation, mini-trial, and arbitration. In addition, if you cannot come to a resolution through a mediation and the other pretrial resolution options are not palatable or unavailable, you can usually bring a suit to institute a quiet title action. This is a powerful tool for getting to the bottom of use right disputes and for clearing up any maintenance or liability concerns.
Creating a Private Road Easement
In Michigan, establishing a private road easement generally requires agreement or negotiation with the owners of any parcels of property that must be crossed for development. This is often part of a re-subdivision of property that falls under the county subdivision control act and requires action that is subject to qualified approval by the local boundary review board and then recording in the county clerk’s office with the Register of Deeds. These easements with the affected adjoining property owners need not be in any particular form, but they must be recorded with the in the Recorder of Deeds office to be enforceable against the owners. There should be a clear and full description attached to the easement, including the following: If the easement is not recorded, the owners of the property subject to the easement provision may refuse its use and the party desiring the easement may be left with a claim for damages for misrepresentation that an easement already exists at law . For shared driveways that are not within or adjacent to a platted subdivision, owners may wish for strict enforcement of the terms of the recorded agreement that establishes the easement rights to avoid possible future disputes with neighbors regarding uses of the easement. Strict enforcement may not be in the best interest of the owner, however, who wishes to record the easement and still retain rights of access over the entire driveway for infrequent maintenance. Disputes with respect to enforcement often arise when one party wishes to change the easement location along the driveway or wants to use the easement for other than normal access purposes.
Amending or Ending Private Road Easements
Modification or termination of easements may be necessary because of changes to surrounding road conditions. Such changes may be due to the development of additional properties on one or both sides of a private road, or due to the public takeover of a road that an easement has been written for. Regardless of the size and scope of the changes to the road, easements may need to be adjusted, so property owners can agree to the modification, or it may take the Court to force the change if the property owners are at an impossible impasse.
One way to modify an easement is to do an amendment to the easement document itself. By adding a provision, addendum or entire new document referencing the modification, such as an easement shift, the amended or modified easement will be enforceable separately from the original. Easements may be terminated by a motion filed with the courts to dissolve the easement if the easement no longer serves a purpose. This termination is similar to how an easement is initially established as well. If all owners of an adjoining property agree to an easement termination, and the easement does not have opposing interests that would force the easement to stand due to it being in the public’s best interest. If there’s an impasse, the courts will look at the factors in MRPC 18.2 before terminating the easement. In determining whether to terminate a private road easement, the courts will look at the following factors that may require a modification or termination:
- Its effect on the public good.
- Its effect in increasing the use of the easement and doing so in a million other ways, like changing the fee ownership aspect to fee ownership with an easement, transferring the dominant tenant’s fee ownership to servient estate of the dominant tenant, or splitting the road’s land into easement parcels based on the original construction of the road.
- Longevity and duration of prior use of the easement.
- The cost to maintain the easement then, now and in the future as affected by its increase use.
- Changing the route of the road or taking public ownership of the easement.
- Changing the aspects of the road, such as how the road is utilized and transferred.
Easement Influence on Property Values
Private road easements have both positive and negative impacts upon the values of real estate in Michigan. Consider the following factors which certainly impact saleability of the property as well as its value:
- Before purchasing a parcel with a private road easement the purchaser should determine responsibility for the maintenance and repair of the road. If such costs are borne solely by the owner, the value of the property may decrease dramatically.
- If a private road easement is maintained by the owners of the parcels served by the road, the value of the parcels will be enhanced proportionately to the maintenance of the road. For instance, a well-maintained gravel road will enhance the value of property served by the road whereas an unmaintained or poorly paved road will detract from property value.
- In some cases, a developer may build a condominium development and assess repair and maintenance costs on a pro-rated basis. The owners will then be responsible for a very small assessment for maintenance of the road. Such a situation will only increase the value of a parcel of property served by the road .
- If a private road easement is used solely to provide access to the nearest public road right-of-way, the value of the property will remain constant.
- Occasionally, property owners may require the provider of water and sewer services to provide such services through an easement over adjoining properties. Ordinarily, the easement is granted without consideration and will not materially increase the value of the property, even if such property attaches to the system during the preliminary phase of a project.
- In some instances, a property owner may receive a fee or rental payment for the services extended to the subdivider of the property. Such payment may increase the property value and decrease when it is determined that a system will be connected to a public utility.
- If a property is well maintained or if it is improved by the paving of the access road and installation of water and sewer facilities, such property may be valued at a premium over the property which does not have direct access to the paved road or which is not serviced by the sewer system.