# Easement Problems



## bigrackmack (Aug 10, 2004)

I bought this 10 acres a couple years back....and bought into a problem....I had it [email protected]@@ surveyed by the realtors guy, that is now in Montana or something.....In my legal description it plainly says that I have a easement to my properthy.....but the farmer says it kiddy corners it, that it doesn't connect to it.....I have been dealing with the title companies lawyer on this matter and she told me that I have to just go threw the peoples yard where my blanket easement is......and get a ticket and fight it in court....first of all I don't want to piss anyone off....but I have no access to my property....any lawyers that have any suggestions or ideas on this matter?....just seems like if they sold me a peice of property with a easement why should I have to go threw all this just to get to it?.....O yeah and the realtor went to the house where my easement is supposed to be and they said there is no easement threw there land and that they would fight it in court....I'm open for suggestions here....it sucks making payments all year on something I'm not gonna be able to hunt....Thanks....Mack


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## ironmachineus (Dec 22, 2005)

Unfortunately, there's no easy answer here and your best bet (only bet really) is to find a local attorney to represent you. If you enter over the property, and it turns out you're wrong (or you walked in the wrong place) you have other problems. If you are truly landlocked, you may have an easement by necessity, but you are going to have to work with an attorney to resolve this issue. Although it's too late now, this is why you should always have an attorney involved before you lay down the money and sign the agreement to purchase the property. They can identify these sorts of issues and you can weigh the risks before you take the plunge.


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## walleyechaser (Jan 12, 2001)

I would go into Howell since you're right there, its the old library building, and look up the plat map to see if it shows an easement.
If it does I'd get a copy of it and show it to the neighbor to see what he has to say about it.
After exhausting that approach, its time to get an attorney as someone suggested. Perhaps the realator/or surveyor he used is liable for compensation or the cost of rectifying the situation. 
Having said that I would think that the surveyor would have used the platt map as a starting point for the survey but who knows what went on.
JMO


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## Ferg (Dec 17, 2002)

Deeds are public records - go to the county seat and pull yours and the neighbors, if there is an easment to your property it will be recorded on one of the deeds - 

Simple.

ferg....


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## bigrackmack (Aug 10, 2004)

I have been to all the places I could think of.....Livingston County is clueless on the whole matter....went in there and they slapped about a 400 page book on the counter and said it should be in here and walked away....township hall was no help.....it is on paper....just not sure where its at....(you know the S.W. corner of section 16 and the SE corner of that)....The street that the easement is at the end of was called Dispute drive......well guess what the dispute was over.....you got it....my easement.....and the farmer I bought the 10 acres off hated the farmer giving me a hard time about all of this....The farmer that I bought it off would have gave it away before selling it do the farmer giving me a hard time about it.....The farmer giving me a hard time about the easement wanted the property to ad to his......I tried to tell him that if I ever sold it I would give him a first crack at it......but I guess that offer isn't still available.......just a crappy situation all around....Mack


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## alex-v (Mar 24, 2005)

bigrackmack said:


> I have been to all the places I could think of.....Livingston County is clueless on the whole matter....went in there and they slapped about a 400 page book on the counter and said it should be in here and walked away....


Mack,

I do not think that they will look it up for you. They will hand you the books and the paperwork and it is up to you to do the research. They will help with basic questions on how to look it up.

People that I know who have gone through this would end up spending several afternoons sitting there reading through the deeds and plat books.


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## 8nchuck (Apr 20, 2006)

Mack, you may not want to hear this but in order to get it resolved you are going to have to spend some money. If the 10 acres was legally split than there would have to be an easement on record, when the deed was recorded. 

You should get an attorney that handles this sort of thing and have them take care of it for you. I bet the easement is there. Do you know when the 10 acres was split? If so look up the documents filed after that date. It maybe on the tax card that is on file in the township also. That would tell you when the tax I.D number was issued - hence when it was split.

It your land, get it taken care of. No matter who you got to piss off. It's your land, it's your right! You try to sell it and you will wish you did.

The farmer you bought it off, you can not give you something he does not have. What I mean is he can't sell you a piece of land and say the easement is on "that guys property". He is the only one that can give you an easement through his property, and that is where it has to be. 

We had a big fight up north with a 640 acre hunt club that was sold off and they used a gate for access to the club but had no Legal easement. All the people that bought land used the gate - hell they cut it down with torches. They legal advice was that we could fight it but we would lose because they "Needed to get to their property". It gets stickyer because the gas company had rights through the gate to the property, or did they? The clubs owners never had legal rights to the gate so the gas companies rights are not legal. SO now we not only fight the MANY new owners of the parcels but the gas company. 

The just is you can not be denied access to your land. you can walk the property line. Now getting a driveway maybe more problematic


You could go back on the Realtor. They have E & O insurance, or they should have. Errors & omissions insurance. It cover there ass in cases like this.


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## bigrackmack (Aug 10, 2004)

My older brother is a lawyer and he talked to the title insurance companies lawyer (and so did I).....and she was the one that told me to go across the property and tell the people to call the police and get a ticket and go to court to get it straightened out......but the whole thing makes no sense to me because they sold me the propery with a easement so why am I the one that has to get the ticket and go to court......its frustrating to say the least....but hey if thats the only why its gonna get resolved then In guess thats what I'm gonna do.....just thought maybe someone else had dealt with a situation like this......I was just trying to keep the peace.......Mack


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## bigrackmack (Aug 10, 2004)

Thanks for the replys guys......Mack


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## GVSUKUSH (Mar 9, 2004)

What does your legal description say? Does it say something like "Together with an easment for ingress/egress" ??? The Farmers gonna tell you what HE thinks, but if your property indeed has an easment for ingress/egress, it'll say so in the Legal Descripition, if not, you should be able to go after the previous seller and real estate agent for leading you astray (Read: Bull*****ting you)

If you do indeed have an easement, have the property re-surveyed and sit down with the farmer to let him know where you stand.


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## 8nchuck (Apr 20, 2006)

http://www.vsb.org/sections/rp/articles/gregory.html

It talks about all kinds of easements


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## hoythunter (Feb 23, 2005)

BEFORE you spend money on an attorney file a complaint against the Real estate agent AND the surveyor with the state of michigan's commercial enforcement division. Unfortunately it will take several months for the investigation to be completed but during the investigation you will receive the real estate agent's and the surveyors response to your complaint. The investigation will also reveal if either of them were in violation of the Occupation Code. You can then either request all of the information through F.O.I.A or have your attorney subpoena it. In the best case scenario one, or both, of them will be found in violation by the State and you can then use that information in a civil suit to collect damages.

Here is the link to the complaint form. Fill out 1 for each of the parties.
http://www.dleg.state.mi.us/bcsc/forms/enf/lce-992.pdf


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## Greenbush future (Sep 8, 2005)

I would think that in the closing papaers when they provide the legal discription of your property they should also have the easment you are speaking of. Have you looked to see if this is documented in any of the closing papers?
Reading the plat books isnt all that hard and is your cheapest way to veiw what is on record at the county office.
You may need to hire a title serch company (BTW this should be done every time land chandes ownership for this and many other lein reasons) any mortgage would require this and so should you. You answer lyes in that documentation, unless it's recorded at the county office my guess is it isnt legal.


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## SteveS (Mar 6, 2003)

Greenbush future said:


> You answer lyes in that documentation, unless it's recorded at the county office my guess is it isnt legal.


You need to hire an attorney, as there are easements that are not recorded, such as implied easements and prescriptive easements.


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## Greenbush future (Sep 8, 2005)

So what you are saying is that unrecorded easments are legal???
I would be suprised but I am not an expert either. 
This is a interesteing thread, very educational.


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## 8nchuck (Apr 20, 2006)

This is from the website above it is for Virginia so they may not hold for MI 



Although there are numerous variations, the basic ways are:1. Grant (or reservation);​
2. Implication;​
3. Necessity; and​
4. Prescription​*Grant or Reservation* 
These are the ones that show up in your title report. The owner of the servient estate grants the owner of the dominant estate the right to use the servient estate for a particular purpose. The grant will have all the characteristics of a deed: grantor, grantee, legal description (of the servient tenement), considerations, and words of conveyance. In addition, it will have a description of the purpose of the easement and limitations on the use. The deed of easement will be signed and acknowledged, and recorded among the land records.
Like a deed, there is no requirement that it be recorded. 
Oral grants of easement may be given perpetual status by a court under certain circumstances, but are not insurable without a court order.
A landowner may also reserve an easement for himself/herself. Most of the time this occurs when the landowner sells a part of his/her property between what he/she is retaining and the public road. The deed of bargain and sale will contain language creating an ingress-egress easement across the severed parcel to the retained parcel. The reservation may also be created in a deed of subdivision, before any parcels are conveyed.
An attempt to reserve an easement in a third party will not be valid.

*Implication* 
Easements by implication are much harder to define. Whether or not an easement by implication exists will depend on the facts and circumstances unique to each case. The established rule is that the conveyance of property carries with it an implied easement for any use that is reasonably necessary for the enjoyment of the property conveyed, and is continuous, apparent, and in existence at the time of conveyance. For example, where a lake was the focal point of a development, was advertised as such, and was an inducement to the public to purchase in the development, the purchasers of lots had an implied easement across the retained lands to access the lake. See _Stoney Creek Resort, Inc., v. Newman_, 240 Va. 461.
Also, where land is described as abutting a lane, path, or other way, there is an implied covenant that the way exists, and the grantee is entitled to the benefit of it. See _Walters v. Smith_, 186 Va. 159. This is similarly true where land is sold with reference to a plat, and the plat shows a way bordering the lot.
*Necessity* 
Easements by necessity (also sometimes called quasi-easements) are really in a subcategory of easements by implication. They arise to prevent property from being landlocked by the actions of the owner of the tract. In order to qualify for an easement by necessity, the to-be-dominant estate must show that the severance of the tract previously commonly owned with the servient estate created the need for access to a public road. In other words, the plaintiff must prove that at one time in the past, the dominant and servient tenements were owned by the same person. See _Middleton v. Johnston_, 221 Va. 797. Thus, drawing on the definition of easements by implication, the conveyance of land carries with it whatever is necessary for the beneficial use of the property.
Easements of necessity need only be reasonable, not absolute. A tract of land may front on a public road, but if the road is a hundred feet below the tract, the land will have the benefit of an easement by necessity. However, mere convenience is not sufficient; the fact that a public road may be in disrepair or not as direct or desirable as another will not give rise to necessity.
*Prescription* 
Refraining from the obvious, a prescriptive easement is similar to acquiring title by adverse possession. It arises from continuous use, and must meet the same heavy standards before a court will order its existence. The use must be adverse, under claim of right, exclusive, continuous, uninterrupted, and with the knowledge and acquiescence of the fee owner of the servient estate, all over a period of 20 years (in Virginia) or 10 years (in West Virginia). As with adverse possession, the continuity may be "stacked" with prior owners of the dominant estate to reach the minimum time requirement.


A few other points about easements by prescription merit mentioning.1. VIRGINIA CODE §15.2-2109.1 reduces the time period to 10 years for a political subdivision attempting to establish an easement by prescription.​
2. If all the other elements are otherwise present, a claim of right will be presumed after 20 years.​
3. If the use of the easement is permissive, no right to prescription can arise, no matter how long the permissive use continues. When the use originates by permission, it is presumed to continue with permission.​
4. If an easement is in use by the general public, no right to prescription can arise because the essential element of exclusivity is lacking. However, each individual landowner may be able to assert a right to the easement independently, where the right is not dependent upon the common enjoyment with others. For example where Tracts A, B, and C are "vertical" to each other, with A fronting on the public way, B may assert a prescriptive easement over A, but C may not because C's use of A's land is not independent of B's use.​
5. Once a prescriptive easement is established, the use of the easement may not be expanded beyond that which was its burden during the statutory period. Where a lane was used for repair of a fence for the statutory period, it cannot later be used for access to a new dwelling.​
6. An easement cannot arise by both necessity and prescription, for the conditions are mutually exclusive. If an easement can be created by prescription, it cannot also be a way of necessity.​


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## Frantz (Dec 9, 2003)

I am sure the answer is yes, but have you simply asked nicely to get access, at least until such a point as the legal stuff is dealt with?

I had question on my parents property and found the best answers when I called the county assessor. He is an old timer that has been around here forever and had a lot of good information. I got a map of the area by calling the county clerk under the premise of pulling a building permit. They were happy to give me a map of the section we live on with everything drawn out showing who owned what.


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## target-panic (Jan 9, 2006)

Great thread ! I am in a similar situation with a 43 acre piece of property that I bought a few years ago. State land on three sides.....Not very easy to even walk through(no roads).........creek......cedar swamp.......etc. There is private land on the fourth side, with a nice old 2 track that loops through my property, then through 2 parcels of private property, then out to the main black top road. The problem is, the land owner at the road has gated it off. My Deed says "no recorded easement", but this two track has obviously been used for many years. I only know where it goes from ariel photos, and by word of mouth, because I didn't want to tresspass on my neighbors land. I have heard that he has no plans of allowing anyone (me) to use the gated road. I plan to go and talk to him, but I would like to know my rights, and have all of my ducks in a row first. I'm not really sure where to start though. I did casually talk to an attorney about it, and he said something about going back & researching previous land splits in that section. Does anyone know of any case law here in MI? Or a link?


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## Zorba (Jan 24, 2007)

First of all, No police officer that I know of would give you a ticket for tresspassing. Not in this case. This guy is being a dick to you. Keep going to youy property. The police will call it a civil matter and drive away. If this guy want's to contest your easement, Let him take you to court. I bet you he does nothing.


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## Nick Adams (Mar 10, 2005)

target-panic said:


> I am in a similar situation with a 43 acre piece of property that I bought a few years ago. State land on three sides....The problem is, the land owner at the road has gated it off. My Deed says "no recorded easement"...


You used to be able to obtain an easement in this situation under the Michigan Private Roads Act. You would apply to the township and the township would essentially force one of the adjacent landowners to sell you an easement under government power of condemnation. Seem to recall there was some sort of hearing to set the route of the easement and the price you would have to pay for it.

There was a Michigan State Supreme Court case in 2002 or thereabouts (Tolksdorf v Griffith) which tested this (Tolksdorf wanted an easement, Griffith wouldn't sell him one, the township refused to force Griffith to provide him with one), with the result being that the Michigan Private Roads Act was ruled to be an unconstitutional taking of private property for private purposes rather than for public purposes. 

Since that ruling, landlocked parcel owners (i.e. "No recorded easement") have no recourse but to pay whatever price the adjacent owner wants for a legal easement and there is no requirement that they have to provide you with one if they don't want to. This situation is fairly common here in the UP. The price of a legal easement jumped sharply after the Tolksdorf case.

There may be some recourse, as mentioned above, using 'easement by implication' if you can prove that all of the parcels were at one time owned by the same party. This is likely to be a long slog and require the services of a lawyer.

-na


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