Easements.
An easement is a non-possessory interest in land, but a legal right to use land possessed by someone else. The holder of an easement has a limited right to use the tract of land in a specific way. However, the holder does not have a right to possess and enjoy the land. Typically easements allow the laying of utilities or a right of way over land for access to another. Generally the easement is ‘owned’ by the land and not by an individual.
Easements are created or destroyed by by writing either in grant or in reservation on transfer of title, implication where it would be impractical not to allow an easement, or by taking it. Easement by implication is created by operation of law and does not need to be recorded or written.
Easement by taking it (easement by prescription) is less common today than in the past. Like adverse possession of land, it requires (i) open and notorious; (ii) adverse; and, (iii) continuous use for the statutory period.
Adverse Possession.
In Michigan, lawful title may be acquired through adverse possession. Adverse possession was of value in the past, and is of great value and necessity today. In the days of old it specifically kept land from slipping into non-use and rewarded a diligent steward with true ownership.
Today, adverse possession not only protects adjoining property owners who encroach and take for their own necessary use, but also encourages adjoining property owners to be mindful of their own property use. For instance, take any two properties, if owner Aaron needs more space, and the other owner Billy doesn’t; and Billy doesn’t (i) want to sell, (ii) want to allow Aaron access, and (iii) doesn’t stop his Aaron from using the land when Aaron tills the unused land, society will give part of Billy’s land that Aaron has been using (so long as Aaron follows the proper legal steps of adverse possession in Michigan).
Michigan adverse possession requires: (i) actual entry; (ii) exclusive possession; (iii) open and notorious possession; (iv) hostile possession (protect what you are taking); and, (v) continuous possession for the statutory period (and all tolling expired).
Ancient Property — commercial investment property — example study.
In uptown Grand Rapids, Michigan 1920 two vacant lots existed. Phil owned the north lot, Tim owned the south lot. Tim built a several story apartment community housing over 100 individual families, and Phil built a warehouse housing commercial inventory. Resident’s at Tim’s apartment community asked Tim to build a garage for their new automobiles; Tim did so. Phil thought nothing of the garage.
Tim followed an east-west line on what was assumed to be the north boundary (touching Phil’s lot) of his southern lot. Years passed, residents used the garage, Tim passed away, and Phil passed away. The land exchanged hands several times and eventually the southern lot (Tim’s) landed in the hands of Tommy. And the northern lot (Phil’s) landed in Peter’s hands.
In 2010, Tommy approached Brad and asked Brad to purchase the land; Brad agrees. While investigating the survey, Brad’s lender discovers the encroaching the garage.
Result.
There are a number of ways of looking at this problem. Whether it is the boundary line doctrine, or adverse possession, Tommy owns at least the land where the building is encroaching, and Brad’s lender should not fear the wrath of Peter.
