734-359-7018
Now Accepting New Clients!
Blog

REAL ESTATE 50: Trial court relied upon warranty deed documents that provided the 2005 Easement superseded the Original Easement.

Defendant owns a parcel of property in the city of Birmingham, Michigan (Lot 4). Contiguous to Lot 4 to the south is a condominium unit (WHC). Plaintiff is responsible for the administration of the WHC.

At issue here are defendant’s rights under a recorded easement provided to Lot 4 by plaintiff and the original developer of WHC and how to interpret those rights based on a 2005 recorded amendment to the easement.

An exhibit attached to the warranty deed executed reflected that Lot 4 was subject to the easement described in the 2005 Amendment, which supersedes in its entirety the Original Easement. There was also a Private Road Acknowledgment that likewise described the 2005 Amendment as superseding in its entirety the Original Easement.

When defendant purchased Lot 4, a patch of dirt still sat between the end of the brick paver driveway and the brick wall. In June 2016, defendant removed the “breakaway” portion of the brick wall to put in a driveway for the new home on Lot 4 and connect it to the brick paver driveway in the easement on the WHC’s property because the city would not issue a certificate of occupancy until he did.

Defendant’s unilateral removal of the brick wall in front of the brick paver driveway instigated the instant dispute with plaintiff.

The board reviewed the 2005 Easement and concluded that defendant was required to provide notice to it and obtain a certificate of occupancy first. The board also discovered defendant’s plans to construct a mailbox, to install a gate with a keypad and other necessary equipment, and to put in brick pavers to widen the driveway from the original 12-foot width to the 16-foot-wide opening in the brick wall. Plaintiff disputed the construction of all these items and ordered defendant to cease construction until it received approval. Defendant stopped construction but maintained that it received approval to continue roughly a week later. Defendant then completed the driveway and gate installation. On August 2, 2016, defendant received the certificate of occupancy for the home on Lot 4.

On January 26, 2017, plaintiff filed a complaint against defendant, alleging breach of the 2005 Amendment and multiple instances of trespass. A three-day bench trial followed.

The trial court determined that defendant breached the 2005 Amendment and trespassed by tearing down the breakaway portion of the brick wall without notice and a certificate of occupancy. The trial court further determined that defendant breached the 2005 Amendment when it constructed the overage and flare and installed the pedestal/keypad, sign, gate, and gate equipment. It awarded nominal damages to plaintiff for defendant’s trespasses and it ordered defendant to remove at its entire and full expense the overage, flare, sign, pedestal, gate, and gate equipment from plaintiff’s property and to restore plaintiff’s property to the condition it was in before defendant’s trespasses.

In reaching this conclusion, the trial court relied upon the 2013 warranty deed documents that twice expressly provided the 2005 Easement superseded the Original Easement. Review of the 2005 Amendment demonstrated that every aspect of the Original Easement was expressly repeated, modified, or omitted. Nothing in the language of the 2005 Amendment suggests that it is intended to be read in conjunction with the Original Easement.

Defendant has consistently argued that because there was no useful purpose for which plaintiff could put that minimal amount of land on the north side of the brick wall, plaintiff ought to have ceded ownership of it to Lot 4 and avoided this whole problem. But plaintiff did not have to have a use for the land; WHC owned it and plaintiff was entitled to stop defendant from putting anything on that land plaintiff did not want.

Defendant had had multiple options through which to seek permission to use or ownership of the disputed area. Instead, defendant took unilateral action that it knew exceeded its ownership and easement rights to exercise dominion over plaintiff’s property.

Are you involved in a real estate dispute in Michigan? Are you seeking an efficient and effective resolution to a property litigation matter?

If you are facing a residential or commercial real estate, seek the advice of an experienced and skilled real estate litigation attorney at Aldrich Legal Services in Plymouth.

Contact Aldrich Legal Services

Three reasons to put a power of attorney in place

Originally posted on 11/08/2016 While no one wants to think of the unfortunate possibility of being incapacitated or of a time when we can't handle our own affairs, this circumstance is a real possibility. If something happens and this...

How to approach parents about estate planning

Originally posted on 12/09/2016 Family forms a strong foundation for many people's first and most intimate community. It is important to strengthen these first relationships so even uncommon questions become natural. For those...

PROBATE 44: Petition for Mental Health Treatment

Michigan’s Mental Health Code governs the civil admission and discharge procedures for a person with a mental illness. Specifically, MCL 330.1434 sets forth the procedure and content requirements for a petition for mental health treatment.

Should you get your criminal record expunged?

Originally posted on 04/12/2017 If you have been convicted of a crime, have served your sentence, and have followed all court recommendations, you should be able to put your past behind you and move on with life. Moving forward is critical...

Choosing the right executor for an estate

Originally posted on 05/28/2017 When people are thinking about planning their estate, they often think about trying to minimize the estate tax, keeping their will updated, and keeping items out of probate court; however, there is another...

Understanding how the Miranda warning works

Originally posted on 11/25/2016 Michigan residents who have seen television police shows or movies involving law enforcement have no doubt watched many dramatic scenes with officers quoting something to the effect of, "You have the...

PROBATE 42: Dissolution of professional corporation.

This case involves the estate of a doctor whose professional corporation also had to be dissolved upon his death. The personal representative of the estate sold the company’s assets but did not pay off the company’s debts before transferring the proceeds to the estate and distributing them to the heirs.

A basic introduction to wills

Originally posted on 10/31/2016 It can be difficult to consider the end of our lives when we are in good health. However, lives can change at any moment, so it is wise to be prepared for any situation that may arise. Despite the many...

REAL ESTATE 73: Quiet title action.

This case involves a dispute over real property located in Michigan. W and V who are D’s parents, acquired the property. In 1999, W and V conveyed the property to the Trust, to which W is the sole trustee, via a quit claim deed. At some point...

How Is Alimony Determined In A Michigan Divorce?

Originally posted on 06/22/2018. When filing for divorce in Michigan, you may seek alimony, spousal support, from their spouse whenever they require financial aid. A judge may order your spouse to pay certain alimony. However, it depends...

Is My Conviction Eligible for Expungement?

Originally posted on 10/11/2019. At one point or another, we have all made mistakes. For some people, those mistakes involved breaking the law. Convictions have a large impact on someone’s life. Beyond the sentencing ranging from...

PROBATE 45: The court held that the probate court did not err by granting summary disposition for Plaintiff, or by denying Defendant’s request for an extension of the discovery period, adjournment of mediation, and issuance of subpoenas and by dismi

This case arises out of competing petitions for probate. On November 19, 2018, Defendant initiated this case by filing a petition for probate, attaching Decedent’s death certificate and purported last will and testament, dated March 9, 2007,...

DIVORCE 57: Holding that the trial court’s factual findings were not supported by the record evidence, and thus could not stand, the court reversed, vacated the portion of the Amended Default JOD ordering defendant to pay $3,325 to plaintiff, and re

Plaintiff first testified that she and defendant purchased the marital home in 1995. At the time the first default judgment of divorce was entered in September 2017, plaintiff had the home appraised. The value of the home was determined to be...

Don't let a bad decision, unfair contract, or a messy divorce get in the way of a promising future!
Contact the experienced team at Aldrich Legal Services today to schedule your free initial
consultation
and secure reliable and trustworthy representation today!
Get the Help You Need From a Team You Can Truly Count On: (734) 404-3000
734-237-6482
734-366-4405