Easement by Necessity in Michigan

Easement by Necessity.  This type of easement occurs when a parcel owner creates a landlocked parcel but does not create an express easement.  Imagine the owner of a rectangular parcel of splits it into two parcels, front and back.  The front parcel is on a road, but the back parcel is not.  The parcel owner should record a written easement (express easement) allowing access to the back parcel, but does not.  In this situation, the law disfavors landlocked parcels and it will imply that the parcel owner intended to allow access over the front parcel to the back parcel.  This is an easement by necessity.  It is also called an easement by necessity because the back parcel has no other access.

Here are some issues which often arise regarding easements by necessity:

·       Easement over what property?  An easement by necessity must always be over land that was owned by the same owner (in other words, you can’t create a landlocked parcel and then claim access to that parcel over your neighbor’s land).  In some circumstances we must look far back to determine when the parcel was landlocked and from what properties it was split.

·       The route over which the access easement is granted.  In general, the subservient estate (the parcel being accessed over) gets to pick the access route, within reason.

·       The same issues regarding scope, use, maintenance/improvement, and expansion stated above