prescriptive easements in Michigan

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Latest post Wed, Mar 22 2017 1:33 PM by ca19lawyer2. 10 replies.
  • Wed, Jun 4 2008 12:39 PM

    • jet9
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    Question [=?] prescriptive easements in Michigan

    Need help to see if the following item regarding prescriptive easements is true in Michigan. We are looking for michigan case law to defend our property rights. Can anybody help?

    Once a prescriptive easement is established, it runs with the land. Therefore, if Plaintiffs can prove that the benefited parcel met all of the elements of a prescriptive easement… for example only, let’s say that the benefited parcel has used your property from 1960 to 1975, a prescriptive easement has been created, and from that point in time it runs with the land forever and it is too late to defeat it. Also, it is common law in Michigan that if the use of a drive has been used in excess of the 15 year period (at any time) it is presumed to be hostile, and the burdened parcel owners must prove that use was by permission. Therefore, tacking may not even be an issue, because if any one of Plaintiff’s predecessors in title owned the property for more then 15 years, and used your property long before your ownership, there is nothing you can do to defeat the easement.
  • Wed, Jun 4 2008 1:07 PM In reply to

    re: prescriptive easements in Michigan

    Jet, if someone were willing to do legal research beyond answers already provided, they'd have responded below.

    You need to discuss this with a local real estate attorney (I recall you said the neighbor has already sued, though you did not mention what the status is of that case).

  • Wed, Jun 4 2008 1:23 PM In reply to

    • jet9
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    Feedback [*=*] re: prescriptive easements in Michigan

    Fxston

    We have a lawyer.

    The case is still in the courts. we will going to trial in 6 months.

    We are trying to set up a defense to our case and trying to research as much as we can on our own. This makes our communication with our lawyer faster and shorter because we are informed.

    We have been able to find the general MCL 2.118 & 119 , etc. through google.

    Trying to find out how to research michigan case law.
    Are there any sites that you can recommend for me to do my own research?

    Thanks for your input yesterday. I read both cases which helped a great deal.

    jet
  • Wed, Jun 4 2008 2:59 PM In reply to

    • Drew
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    re: prescriptive easements in Michigan

    It sounds to me like you are using counsel who lacks expertise in this area--you do not want to be part of his or her learning curve?

    I believe your analysis of the issues is wrong.

    If some prior owner openly and notoriously used that path cira 1960 to 1975+ that specific owner may have had standing to to seek prescriptive easement but if he or she failed to do so it does NOT follow that a subsequent owner can apply tacking in 2008 to something in 1960-75 as it is extremely likley that they lack privity of contract with the 1960 era owner

    Second, this stuff gets very state specific--and many places it is the person seeking the prescriptive easement who must prove prior use was NOT by permission. The general flavor being that the deeded owners rights are superior until proven otherwise. Hence--if Grandpa gave permission decades ago to friends to use his driveway then permission trumps hostile use--and the new seeker would need to prove it was NOT by permission.

    Now state or case law could create a presumption of a prescriptive use---but you'd need to find that for MI--and I'll bet the cases arise when say 1/2 the town uses your yard as a short cut to the beach for 3 decades with no overt permission or posting or interruption or anything and NOT when some neighbor tries to tack on some old 1960 use he himself never had.



  • Wed, Jun 4 2008 4:24 PM In reply to

    • Drew
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    re: prescriptive easements in Michigan

    Also if the conditions to claim a prescriptive easement were ripe in 1975+ (1960 -1975+) the failure to do so them might be stale by now as MI may have a statutue of limitations applicable to such stale claims --15 years.

    See the 2006 MI Appeal by Stebbins which sort of addresses the reverse problem.



  • Wed, Jun 4 2008 4:49 PM In reply to

    • Ford
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    Feedback [*=*] Resources . . .

    Start here:
    http://www.findlaw.com/11stategov/mi/index.html

    Compiled laws page isn't loading...

    Last I recall, a prescriptive easement could be lost through nonuse.
  • Fri, Jun 6 2008 8:49 AM In reply to

    • jet9
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    re: prescriptive easements in Michigan

    Thanks to all that have helped me. Fxston, Ford Drew

    I have now learned some of the research methods to looking up cases.

    We are now learning a great deal on prescriptive easements rights and have read numerous of Michigan state court of appeal cases. Some of their rulings are very clear.

    We are finding that the law may not follow what I originally thought was common sense. And yes prescriptive easement rights can or may have been in existence long before we purchased the land - possibly since 1925 and the frustrating thing is that it may not even be recorded.

    Thanks again for your help.

    jet
  • Fri, Jun 6 2008 12:45 PM In reply to

    • Drew
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    re: More

    The fact that the a use dates back say to 1925 is not conclusive that a prescriptive easement exists.

    The conditions to get a prescriptive easement may have ripened say cira 1940 but if nobody applied for same and prefected same then it may NOT have come into being. And if the present use cannot be tacked by new applicant because he failed to properly link it and or the use proven as continuous at least 15 years back from 2008 then the new applicant may not have winning cards.

    And if the 1925 use was by permission all bets are off to prove prescriptive use.

    ALSO you need to take a careful look at the warranty of title the seller gave to you and the whole deed. If he gave you a general warranty of title you may want to lean hard on him to defend the title he gave you!
    (Title insurance is likley unfruitfull place to lean but you can check it) If he gave you a special warranty and use was by his permission he may have powerful incentive to help you!

    If you gave us more clues as to your specific perhaps somebody may have more targeted suggestions.

    I'm worried that your counsel may not be an old hat at this area of law? And if you are going up against a seasoned pro you may be doing yourself a disservice unless you have a rock solid fact patterns in your favor with case law to back it up.



  • Wed, Mar 22 2017 10:12 AM In reply to

    Re: prescriptive easements in Michigan

    Was wondering if you have time to speak by phone? 2694081371

  • Wed, Mar 22 2017 11:16 AM In reply to

    • DOCAR
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    Re: prescriptive easements in Michigan

    Since this thread is almost 9 years old and the poster has not posted on the site since 2010, I doubt you will get a response.  Putting personal information on the internet is not a good thing to do.

  • Wed, Mar 22 2017 1:33 PM In reply to

    Re: prescriptive easements in Michigan

    This thread is NEARLY NINE YEARS OLD.  Seriously?

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