Express Easements in Michigan

Express Easement.  An express easement is a written document which is recorded in the chain of title of the subservient estate (the land where the easement runs).  The document must be in writing, because it is an interest in land and subject to the statute of frauds. An express easement always arises from a mutual agreement between the landowners.  The easement will describe the portions of the parcel subject to the easement and usually describe the rights held by the easement owner.  For instance, in a routine “driveway easement”, the written easement will describe the area of the driveway, the access rights of the easement holder, and the responsibilities for maintenance of the easement. The writing must contain language that clearly demonstrates an intent to create the easement—if there is ambiguity, a court will resolve an ambiguity in favor of not finding an easement. Note that the easement must be irrevocable and permanent—if the writing only grants permissive use that can be revoked, the document is likely a license, not an express easement.

Here are some issues that often arise from express easements:

·       The land described in the easement is not the land actually used by the easement holder

·       The use of the easement is different or larger than described in the easement

·       The owner of the subservient estate has interfered with use of the easement

·       The easement user is causing damage to the land not allowed in the easement

·       After the easement was granted, the parcels have been split or altered such that there is a question of which parcels are encumbered by the easements or which parcels can use the easement

·       One party attempting to make unilateral changes to the easement

·       Has the easement been abandoned by lack of use