To properly understand the ways an easement is created to access a waterbody, it is helpful to understand the basics of property law. The general concept of having interest in “property” includes various rights; these rights are often called a “bundle of sticks.” What sticks you hold depends on the interest you have in a property.1
If you hold title to property in “fee simple absolute,” you essentially hold the entire bundle of sticks. This bundle includes:
This also includes the owner’s right to sell, lease, or use the property in any lawful way.3 Additionally, holding title in fee simple absolute generally includes ownership of oil, gas, and minerals in the soil.4 Generally, the language of the instrument used to create an interest in property is binding. And usually, the instrument used is known as a deed. While there are various types of deeds, the most common type is a warranty deed. In Michigan, for example, if the deed simply states that the seller “conveys and warrants” to the buyer the described property, as well as provides the amount of consideration, it is deemed and held to be a conveyance in fee simple absolute to the buyer5– i.e. conveying everything that the seller owns.
In addition to the landowner’s right to use and enjoy his or her property, it is well established that landowners have the right to allow others to use their property in exchange for some form of consideration—usually money.6 For example, a landowner may execute a lease giving another individual the right to move in and occupy the premises. Such an interest in land is “possessory” in nature.
On the other hand, there are interests in land that are “nonpossessory” in nature. For instance, an easement is classified as a nonpossessory right to enter and use land in the possession another.7 Among the various types of easements, like utility and sewer easements, a right of way is the most relevant to those interested in water access and riparian rights. It is important to remember that only a landowner has the right to burden a piece of property by granting an easement.8 It is therefore always advisable to run a title search in order to determine who the true owner of a parcel is, and what are his or her respective rights relative to a piece of property.
While we like to think that we can use our property in any way we please, unfortunately, this is not always true. Again, whether the use of property is restricted depends on the language and provisions in the conveyance.9 For example, for those living in a condominium or a platted subdivision, the use of property is likely restricted in many ways.
A plat map or chart of a subdivision almost always contains easement descriptions, some of which could concern the right to access and use an inland lake. Such easements cannot be easily revoked and are deemed to bind the landowner and his or her successors.10 Always keep in mind that by purchasing property that references a recorded plat you are presumed to accept the benefits and any liabilities associated with it.11
Imagine you buy a house and three years later someone knocks on your door claiming to be the true owner of that house. Holding title to land could mean nothing in certain jurisdictions if the document (usually a warranty deed) is not recorded in the register of deeds. Generally speaking, it is imperative to properly record the warranty deed you physically receive from the seller in order to protect yourself from subsequent purchasers or others claiming superior title.
1Adams v. Cleveland-Cliffs Iron Co., 602 N.W.2d 215, 218 (Mich. App. 1999)
2Eastbrook Homes, Inc. v. Treas Dept., 820 N.W.2d 242, 24 (Mich. App. 2012).
3Winter v. Mackie, 376 Mich. 11, 19 (1965).
4Winter v. Mackie, 376 Mich. 11, 19 (1965).
5MCL § 565.151.
6NACG Leasing v. Dept. of Treas., 843 N.W.2d 891, 892 (Mich. 2014).
7Marvin M. Brandt Revocable Tr. v. U.S., 134 S. Ct. 1257, 1265 (2014).
8Kesti v. Aho, No. 316357, 2014 Mich. App. LEXIS 1247, at *5 (Ct. App. June 26, 2014).
9Buckley v. Mooney, 63 N.W.2d 655, 658 (Mich. 1954).
10Beach v. Lima Twp., 770 N.W.2d 386, 392 (Mich. App. 2009).
11Martin v. Beldean, 677 N.W.2d 312, 317 n.19 (Mich. 2004) (citing MCL 560.253).
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