233 Mich. 227 (1925).

One-Sentence Takeaway: Where the owner of two or more lots situated near one another conveys one of the lots with express building restrictions applying thereto, in favor of the land retained by the grantor ‘the owner of the lot or lots retained can do nothing forbidden to the owner of the lot sold.

Summary

Factual Background:

A plan with 91 residential lots 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.

Defendant in the case acquired a lot that did not have the restriction imposed upon it in the deed. Defendant began to construct a gas station at the rear end of the lot and Plaintiff and other neighbors sought an injunction to prevent further construction.

In the lawsuit, Plaintiff alleged that operating a gas station on the lot violated the scheme of the original plan which called for the lots to be used for residential purposes only. Plaintiff further asserted that Defendant’s lot was subject to the reciprocal negative easement imposed on the other lots notwithstanding the absence of the restriction on the deed.

The trial court entered judgment for Plaintiff and Defendant appealed.

Issue(s) Presented:

The issue presented to the appellate court was whether a reciprocal negative easement created in all real property conveyed by a common grantor even if the restrictions were explicitly contained on some but not all lots.

Holding:

The court ruled in the affirmative and affirmed the trial court’s judgment.  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.

If the owner of two or more lots sells one with restrictions benefiting the land retained, the servitude becomes mutual. The restrictions imposed upon the sold lots are also imposed upon those that are retained.

A reciprocal negative easement runs with the land sold and is not personal to the owners. Such easements remain until they expire or they are terminated by other events, and 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.

In this case Defendnat’s lot was one of the lots that received benefits from the restrictions. Plaintiff and Defendant’s lots were previously owned by a common owner.

The easement may be enforced if Defendant knew of or should have known of the restrictions. Defendant was on inquiry notice beyond merely asking the grantor whether there were restrictions. It was clear that the residence was located in an area used strictly for residential purposes and reasonable inquiry would have informed him of the easements.

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