A prescriptive easement arises in a manner similar to adverse possession—after 15 years of open, continuous, notorious, and adverse use. In the landmark decision of Marlette Auto Wash, LLC v. Van Dyke SC Properties, LLC, No. 153979
, the Michigan Supreme Court put to rest all doubts that a prescriptive easement vests automatically after 15 years, regardless of whether the adverse user ever took legal action to claim the easement. Once the 15 years has run, the easement vests and runs with the land, like any express easement, even if it is not mentioned in any deed or reflected in the chain of title.
For 23 years, the car wash on the corner of M-53 and Euclid in the village of Marlette used the parking lot of an adjacent development for customer access to its car wash bays. The car wash sat on a parcel originally owned by Bernard and Evelyn Zyrowski, which was split from a larger parcel. The car wash was established on the smaller corner parcel abutting M-53 and Euclid in 1989 by B & J Investment, whose owners were Bernard Zyrowski and his son James. The remaining parcel was conveyed to Marlette Development in March 1990 and developed as a parking lot and shopping center. For more than 15 years, the car wash’s customers used the shopping center parking lot to access the car wash. In 2000, B & J Investment closed the street-side entrance to the parcel by constructing a car wash bay on that side of the parcel, and the village of Marlette completed the closure by curbing the old entrance. That left the adjacent parking lot as the only practical entrance. In April 2005, B & J Investment sold the car wash to Lipka Investments, which defaulted on its mortgage 17 months later and gave the bank’s property-holding entity a deed in lieu of foreclosure. Six months later, Marlette Auto Wash purchased the property.
Six years later, the story takes an interesting turn. In May of 2013, Van Dyke SC Properties, LLC, whose sole owner was James Zyrowski (prior owner of the car wash), purchased the shopping center and parking lot. Shortly after renovations concluded in November, Zyrowski “made clear that unless plaintiff contributed $1,500 per month to support the overall maintenance of the parking lot, defendant would park trailers at the property line, closing off access to the car wash.” Marlette Auto Wash refused and, after finding snow banks across the entrance to the car wash, sued to quiet title. After a bench trial, the Sanilac Circuit Court concluded that a prescriptive easement had vested in 2005 and run with the land to its current owner, Marlette Auto Wash. The Court of Appeals reversed, holding that no prescriptive easement had vested because Marlette Auto Wash had failed to establish “privity of estate” by some reference in the deeds or a parole statement regarding the easement at the time of sale. The Court of Appeals further opined that, while a property interest acquired through adverse possession vests when the statutory period expires and not when the action is brought, Marlette’s claim failed because “no previous owner of the car wash asserted a claim of prescriptive easement with regard to [Van Dyke’s] property.” It held that this requirement was obviated only when the easement was used for “many years” beyond the 15-year prescriptive period.
The Michigan Supreme Court reversed. Relying on two prior decisions, one from the 1920s and one from the 1950s, the Court held, “when a claimant can demonstrate that a predecessor-in-interest met the requirements for the establishment of a prescriptive easement, the vested easement transfers to subsequent property owners in the chain of title without the obligation to show privity of estate.” The Court further explained that “when the property has been adversely used in excess of the prescriptive period for a substantial period of time, the burden shifts to the servient estate owner to show that the use was merely permissive.” But the “many years” rule “is not germane to whether the proponent of the easement is required to establish privity of estate with a predecessor in the proponent’s chain of title under whose ownership a prescriptive easement had vested.” Finally, nothing in the case law the Court of Appeals relied on “requires that a prior property owner assert a legal claim in order for a prescriptive easement to vest.” Though defendant raised the specter of secret easements that “spring to life” many decades later, the court was not concerned. Van Dyke—whose owner had established the easement—could certainly make no claim that the easement was secret, and multiple doctrines—such as the bona fide purchase rule—precluded easements from sneaking up on unwary purchasers of the property.
Disclaimer: Warner Norcross & Judd LLP represented the prevailing party in this case.