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.
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