This page is maintained by Andy Blodgett.  Andy is an attorney at Parker Harvey, a full-service law firm in Traverse City, Michigan.  A large portion of Andy’s practice is representing clients in property disputes.  You can view his firm profile here, email him, or visit Parker Harvey’s main page. 

Reciprocal Negative Easement

Reciprocal Negative Easement

Michigan property law includes a concept known as reciprocal negative easements (sometimes called negative reciprocal easements) which can force restrictions on a piece of property even though those restrictions aren't recorded anywhere in the chain of title.  Here's how it works.

To understand a reciprocal negative easement, it helps to know what a restrictive covenant is.  A restrictive covenant is a restriction on the use of a property that is recorded by the owner and placed in the chain of title.  A restrictive covenant is usually created when an owner of a parcel splits it into development parcels and records restrictions on each of the new parcels.  Common restrictive covenants are "single family residential" generally, and specific items such as minimum home size, setbacks, outbuildings allowed, fences, and other building and use restrictions.  These are called restrictive covenants because they are restrictions on the property and are a contract (covenant) between the parcels in the development, all of which have the restrictions and which depend and rely on the restrictions.

A reciprocal negative easement  arises when the developer fails to record the restrictive covenants in the chain of title for one or more of the parcels.  In that event, in certain conditions, a court will find that the parcels are bound by the restrictions even though the restrictions don't appear in the chain of title.  This doctrine has been recognized in Michigan since 1911.

There are several elements that must exist to create a reciprocal negative easement.  The burden is on the party asserting the existence of the reciprocal negative easement to prove its existence.  The first element is a former common owner.  All the parcels subject to the reciprocal negative easement must have been owned, at the same time, by a common owner.  This normally arises when the common owner has owned larger parcels and has later split them into smaller parcels.  Importantly, agreements reached between other lot owners (after the split) cannot be binding on the lots which do not agree. 

The second requirement is that the common owner have a common plan or scheme for the development.  This is often shown by either the express restrictions written into the chain of title for most of the parcels, or visual evidence of the neighborhood (ie, the parcels are all residential, not commercial).  The common scheme must have been understood from the beginning, and must have been accepted, relied on, and acted on by everyone having interests in the neighborhood.

Third, the lots subject to the restrictions must be similarly situated.  Because the restrictions were meant to be uniform, the lots subject to the restrictions must be similar.

Finally, there must be actual or constructive notice of the restrictions.  This gets to the intent of the developer.  The cases discussing reciprocal negative easement generally speak of what a prospective buyer or visitor to the neighborhood would notice--for instance, all the lots are residential, or all the lots have similar setbacks or other characteristics.  This would put the buyer on notice that, for instance, a gas station or condominium would not be allowed or, more specifically, a certain type or size of home was required on all lots. 

When these elements are all present, a court will determine that the purchaser should have been aware of the characteristics of the neighborhood and will be bound by the common plan or scheme even though the restrictions are not expressed in the purchaser's title.  This is a reciprocal negative easement, and courts will impose it on an owner in equity (fairness) because the owner should have been aware of the situation and because the other owners relied on the characteristics of the neighborhood when they purchased their lots.

If you have further questions about a possible reciprocal negative easement situation, please email or call Andy Blodgett.

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