Knowledgebase

Common Driveway Easement #566190

Asked May 31, 2019, 5:38 PM EDT

I have a new construction project that was built alongside my property that I have lived in for nearly 30 years. I made the city and the new owners aware of the Liber filed common driveway easement (dated 1968) prior to any demolition or construction - and the common driveway was very apparent when they purchased the property. I signed a Plot Plan provided to me by the new owners that showed the common driveway in place alongside the new home and gave "Temporary" permission to remove a portion of the driveway to dig the foundation of the new home (Jan 2018). We continually asked the city to be included in decisions that could effect our continued use of this easement - but were never notified by the city of any plans in regard to this property. The city took the position that the easement was "a civil matter." Needless to say the owners felt empowered by the city's position and have not returned the driveway to us and have installed there gas meter, down spouts, fencing, pool deck, etc. in the prior driveway. We are in litigation over its return and the removal of the elements installed. Is this the typical position of a municipality? Can a city choose to ignore a Liber filed easement document and allow an owner to construct inside a recorded easement? Per the city's website easement must be shown on a Site Plan. The builder did not NOTE the easement on the Plot Plan (not did he NOTE the 10' easement alongside the railroad ROW and removed the reference to it from the legal description on the Plot Plan). The city was in possession of a copy of our Easement document prior to the Plot Plan being submitted so we felt we had protected ourselves. Property is purchased subject to existing building restriction and easements. What obligation if any does a city have to uphold property rights of easement holders?

Oakland County Michigan

Expert Response

Greetings,

Generally speaking, a municipality has no role in enforcing easements or deed restrictions. In that sense, they are a civil manner.

However, if a standard in the ordinance requires the showing of all easements on a site/plot plan and the site/plot plan was deficient in that way, then the site plan should not have been approved because it was not complete according to the ordinance.

You might explore whether you have standing and can still appeal the approval of the site plan to the Zoning Board of Appeals. Zoning approvals by the zoning administrator or the planning commission can generally be appealed. In this case though, construction has progressed and your neighbor has a vested right. That said, the easement would have language as to what use, activity, facilities are permitted within the easement.

We cannot offer legal advice and you are encouraged to find a qualified legal opinion.
Brad Neumann, AICP Replied June 19, 2019, 3:33 PM EDT

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