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A Better Partnership
November 20, 2014

COA affirms validity of an express exclusive easement appurtenant

In Penrose v. McCullough, No. 316435, the Michigan Court of Appeals held that an express, exclusive easement was valid because it ran with the land, and because the subsequent purchasers of the servient estate had constructive notice of the easement. Three parcels located in a subdivision in South Haven, lots 9, 10, and 11, were once owned by the same couple, but they sold one of the parcels. After the sale, the buyers attempted to grant the sellers an easement over another parcel they already owned, lot 6. The buyers and sellers both eventually sold their properties to other people. The court held that the easement failed as to one of the lots because the original buyers identified the grantee as “the title holder of Lots 9, 10, and 11” after they had already purchased lot 11. Common ownership of the parcel subject to the easement and the easement therefore extinguished the easement.
The court also held, however, that the easement as to lots 9 and 10 were valid and ran with the land. The court held that the easement was appurtenant, or attached to the land, because the language of the grant specified that it ran with the land and that it was for the benefit of other lots. The grant also specified that the easement was exclusive, and since the grant was recorded, the buyers of the servient parcel had constructive notice of the easement when they purchased the property, so it was still subject to the easement. The court also held that the doctrine of laches did not apply, because the purchasers of the burdened parcel sued only three months after moving in, after they parked their car and blocked the plaintiff’s construction equipment.

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