A plat consisting of 91 residential lots in a wealthy area was recorded in 1891.
Most of the lots were deeded to others with a restriction imposing a restrictive negative easement on the land such that the lots could be used only for residential purposes. Deeds to other lots did not recite the restriction.
D obtained a lot that did not have the restriction imposed upon it in the deed and began to construct a gas station at the rear end of the lot.
P and other neighbors sought an injunction to prevent further construction.
P claimed that operating a gas station on the lot violated the scheme of the original plat which called for the lots to be used for residential purposes only.
P asserted that D’s lot was subject to the reciprocal negative easement imposed on the other lots despite the absence of the restriction on the deed.
Trial court found for P.
MI Supreme Court affirmed, found for P, injunction granted.
Is a reciprocal negative easement created in all real property conveyed by a common grantor even if the restrictions are explicitly contained on some but not all lots?
A reciprocal negative easement is created in all real property conveyed by a common grantor even if the restrictions are explicitly contained on some but not all lots.
A reciprocal negative easement…
Runs with the land sold and is not personal to the owners.
Remain until they expire or they are terminated by other events
Operate on the use of the land through either actual or constructive notice.
In order to create such an easement, the land must begin with a common owner; they are never applied retroactively.
If the owner of two or more lots sells one with restrictions benefitting the land retained, the servitude becomes mutual.
Here, D's lot was retained for longer after the original seller put restrictions on some lots.
Thus, D's lot received the benefits of the restriction, and the servitude becomes mutual.
The easement may only be enforced, however, if D had knew or should have known of the restrictions.
It should have been clear to D that this was a residential neighborhood.