Daily Development for Friday, November 2, 2001

By: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
prandolph@cctr.umkc.edu

EASEMENTS; CREATION; DEDICATION: Declaration language providing that certain parcel will be "reserved" to use of subdivision residents does not create either a private or public dedication of the parcel, but may create an easement that is a property right subject to a separate provision in a separate Declaration providing that "rights herein . . . shall continue for a period of 25 years . . ."

Martin v. Beldean, 2001 WL 1314903 (Mich. App. 10/26/01)

In 1969, developer laid out a subdivision and recorded a plat that contained, in addition to certain easements and a street dedication, a provision that "Outlot A is reserved for the use of the lot owners." Outlot A was adjacent to a recreational lake, and over the years the record showed that some residents used portions of the lot for lake recreation purposes.

The developers then recorded a separate set of restrictions that included language providing that "all the restrictions, conditions, covenants, charges, easements, agreements and rights herein contained shall continue for a period of twenty-five years from the date of recording of this instrument." This declaration did not mention the restriction on Outlot A.

At the time of these actions, Outlot A, together with adjacent lot 21, were owned by Fritsch, who signed the dedication on the plat and the restrictions. Later lot 21 and the portion of Outlot A were sold together several times, until they finally passed into the hands of Paskos in 1996. Now, twenty five years after the recordation of the restrictions agreement, Paskos claimed they owned Outlot A free and clear of any rights in their neighbors and proposed to build on it..

The trial court granted summary judgment to Paskos. The Michigan Court of Appeals here affirmed.

The court first addressed the application of the dedication statute, contained in the Land Division Act. It provides that "[w]hen a plat is certified, signed, acknowledged and recorded as prescribed in this act, every dedication, gift or grant to the public *or any person* . . . marked or noted as such on th eplat shall be deemed sufficient conveyance to vest the fee simple of all parcels . . . so marked and noted." (Emphasis added). Despite this very broad language, the court rejected the argument that the statute provides for dedication to private parties. It cited prior Michigan authority to this effect. The statute, in its view, deals only with "public ground."

Starting with that interpretation of the statute, it is easy to predict how the court would go. It noted that dedications to the public require a clear intent to so dedicate and a clear acceptance by the public entity. Neither existed here, of course, which was no surprising, since clearly the original subdivider did not intend a dedication to the general public or to a public entity. (The court, incidentally, did acknowledge that private parties within a subdivision in Michigan do obtain private rights from a public dedication, to the extent that their use rights may continue beyond a subsequent abandonment by the public entity.)

The court thus concluded that there could be no creation of a fee interest in the neighbors, since without the statute there was no basis to so conclude. It then turned to the question of whether the "private contractual right" - essentially an easement. The court, for some reason, characterizes the right as an "implied restrictive covenant," and, perhaps for that reason, comes to the rather strained conclusion that the easement was subject to the twenty five year restriction contained in the separate "reservations document." Here is the court's entire analysis of that rather important question:

"The restrictions document expressly refers to the plat documents at Liber 129, pages 29 and 30, the documents were executed and recorded at the same time and they relate to the same transaction. Further, copies of deeds for lots sold in the subdivision that were submitted by the parties not only refer to the plat, but specifically state that the deed is subject to recorded restrictions. Accordingly, we construe the documents together as one instrument for purposes of determining the rights of the lot owners. . . ..

Reading the documents together, we find that 17 clearly and unambiguously provides for a twenty-five year duration for "[a]ll the restrictions, conditions, covenants, charges, easements, agreements and rights herein contained." Thus, as matter of law, the "reserved for the use of the lot owners" restriction expired in November 1994 and defendants, as lot owners, may not enforce it. . . " (citations omitted) Comment 1: "Excuse me, but if the subdividers really intended the easement in the Outlot to be included among the restrictions subject to a twenty five year limit, couldn't they have quite easily included that easement in the "restrictions document," or referred to it there?" Note that the court says nothing about any cross references between the two documents - it simply says that the subsequent deeds, not surprisingly, referred to both the plat and the restrictions.

Comment 2: As suggested the court's confusion here may arise from the fact that it characterized the right of use in the Outlot as a "restrictive covenant," whereas it was a quite different species of right - an easement. Hard to know how the judge got through law school without understanding that distinction (note no derogatory comments here about the Restatement of Servitudes - an admirable demonstration of editorial restraint, if he says so himself).

But it's quite possible that this confusion did not lead to the result, since the restrictions document does say that any "easements . . . herein contained" expire in twenty five years. The real problem, as noted, was that the easement in question was not "herein contained."

Comment 3: Of course, it might be argued that the "community" that the developer envisioned created was intended to last only 25 years - as the resrictions document suggests - and that the right of use in the Outlot was necessarily related to that. Well, one can say that. But that doesn't necessarily make it true. The Outlot was the access to a lake. Whether or not the various residents of the community were subject to reciprocal use promises, they still might very well have benefitted from, valued, and desired the access that the Outlot provided. Who are we, at this distance, to say that the developer/purchaser deal contemplated some other result?

They did use two separate documents after all, and the 25 year restriction appeared in only one.

Comment 4: The editor thus concludes that the case is very wrong. Perhaps it doesn't rise to the significance of a warp in the fabric of the law, but it's a shame to see judges make such patently wrong use of legal terminology in the property area. Law schools around America have restricted "basic training" in property law to only 4 units, so get prepared for more of the same.

Readers are urged to respond, comment, and argue with the daily development or the editor's comments about it.

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