Marlette Auto Wash v. Van Dyke SC Properties
Docket No. 153979
Trial Lawyer’s Takeaway: no tacking is required if prescriptive easement has already vested; prescriptive easements are appurtenant; burden of proving hostility shifts to landowner “many years” after statutory period
This case involved every property law student’s favorite topic: adverse possession. More specifically, it involved easements by prescription, which are a variant of adverse possession. The basic gist of adverse possession law in Michigan is that if someone has clearly treated property as their own for a period of fifteen years, and the real landowner has never done anything about it, then that person (the adverse possessor) will have a right to the land. A similar principle applies to an easement—which is just the right to use another’s land, rather than a right to possess it. Issues arise when it comes time to transfer property that is potentially subject to an adverse possessor’s interest. This case analyzes one of those issues.
A person adversely possesses property when a number of elements are satisfied: (1) the person had actual possession; (2) the possession was continuous; (3) the possession was open and notorious (meaning it wasn’t hidden or secretive); (4) possession was exclusive (meaning that it wasn’t shared with someone else); (5) possession was hostile (meaning that it was in conflict with someone else’s right to the property); and (6) possession was uninterrupted for the relevant statutory period (which was 15 years here). Under MCL 600.5801, a landowner has no right to kick another person off his or her land if that person has adversely possessed it for fifteen years.
An easement is the right to use another’s land and, like ownership of land, can be obtained by adverse possession. When this happens, the result is called a prescriptive easement. Because an easement, by its nature, involves someone else’s land, one can gain an easement by prescription without satisfying the element of exclusivity mentioned above. Otherwise, all the elements of adverse possession still apply.
Another aspect of adverse possession at issue in this case is “tacking,” which is the principle that a person who has been adversely possessing property can actually transfer the credit for the years that they have done so to another person. For example, if one person has been adversely possessing property for seven years, he could enter into an agreement to transfer that interest to a second person. This second person would then need only to continue adversely possessing for eight years to satisfy the statutory requirement of fifteen years.
To successfully tack, however, that second person must be “in privity of estate” with the first person. Privity can be established in three ways. First, when a deed includes a description of the disputed property. This would occur when the seller of land has adversely possessed adjoining land and includes that in the deed to the buyer. Second, privity can be established when the first adverse possessor actually transfers his interest through oral statements. Third, according the Court, privity can be established “if a property owner is ‘well-acquainted’ with the previous property owner and had visited and used the disputed property ‘for many years’ before acquiring title.”
The property at issue in this case exchanged hands many times through different transactions, but the facts necessary to understand the issue are as follows. One company owned parcel A; another company owned parcel B. Parcel A had a parking lot on it. The company that owned parcel B began operating a carwash in 1989. Starting in that year, customers crossed the parking lot located on parcel A to get to and from the carwash.
Sixteen years later, the owner of the carwash sold the parcel to another buyer. At closing, the buyer asked the seller how customers should access the carwash, and the seller said they had used the parking lot on parcel A since the carwash had opened. The property changed hands a few more times until 2013, when the defendant, Van Dyke SC Properties, purchased parcel A and blocked off access to the carwash on parcel B.
The plaintiff, Marlette Auto Wash, sued, claiming it had a prescriptive easement. Van Dyke argued that Marlette was not in privity with anyone who had adversely possessed the easement and therefore had no right to use the parking lot.
The Court, in a unanimous opinion by Justice Wilder, held that the prescriptive easement had vested while the initial carwash owners still owned the land. Customers had used the parking lot on parcel A to access the carwash on parcel B since the carwash opened in 1989. Therefore, fifteen years later, in 2005, the owners of parcel A had obtained a prescriptive easement. Crucially, once a landowner obtains a prescriptive easement, that easement is “appurtenant,” meaning that the easement is tied to the land, not the particular landowners. Therefore, when the initial owners transferred the land in 2006—the year after the prescriptive easement had vested—the easement stayed with the land that was transferred to the purchaser.
Because the easement had already vested, no tacking was required. Tacking is only required if an adverse possessor needs credit for the time that somebody else adversely possessed the land. Here, that was unnecessary because the first carwash operator had used the parking lot for the statute’s fifteen-year period. Since no tacking was required, no privity estate needed to be shown.
The Court also upheld a burden-shifting principle for one of the elements of adverse possession. Typically, a party claiming adverse possession has the burden to prove all of the elements described above. A common defense by landowners is to say that the landowner gave the adverse possessor permission to use the land. This permission would destroy the required element of “hostility.” The Court held, however, that burden of proof regarding hostility shifts from the adverse possessor to the landowner when the land had been possessed (or, in the case of a prescriptive easement, used) for “many years” or a “substantial period of time” after the 15-year statutory period. The examples the Court cited involved using an easement for over forty years. In this case, the easement had been used for only twenty-four years, but the Court conducted this burden-shifting analysis to correct an error of the Court of Appeals. The Court did not say that twenty-four years constituted “many years” or a “substantial period of time.” But one could potentially argue the Court implied it.
Lastly, the Court dismissed Van Dyke’s argument (and the Court of Appeals’ decision) that the first owner could not have transferred the prescriptive easement because the owner did not file a legal claim for the prescriptive easement before the transfer. The Court clarified that, although an adverse possessor does not obtain recorded or marketable title until a court issues a judicial decree, “one gains [legal] title by adverse possession when the period of limitations expires, not when an action regarding the title to the property is bought.” Van Dyke argued that this rule recognizes “secret” easements, but the Court pointed out that an element of adverse possession is that the possession be “open and notorious,” which the Court has defined as so visible to the world “that if the true owner remains in ignorance it is his own fault.” Therefore, no “secret” easements can be gained through adverse possession.
Justice Clement took no part in the case.
Full opinion here.