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Joint Upkeep Obligations for Landowners Along Private Roads

On October 22, 2020, the Michigan Court of Appeals addressed maintenance issues for private roads. In Bayberry Group, Inc. v. Crystal Beach Condominium Association ____ Mich App ___ (2020), the Court of Appeals held that the requirement to maintain a private road easement by those with ingress and egress rights is limited solely to the upkeep of the roadway itself, and does not extend to the entire right-of-way or easement area that may include landscaping, traffic signs, lighting, irrigation and curbs located beyond the roadway itself.


Bayberry Group, Inc (“Bayberry”), the successor developer of The Homestead, a large resort comprised of several condominium associations, sued four condominium associations that refused to contribute to the cost of maintaining a private roadway easement within the resort, South Homestead Road, that permits access to those associations’ properties from M-22. Defendants had been granted a private road access easement for ingress and egress on South Homestead Road in their condominium documents. The trial court held that the defendants were responsible under the common law to contribute their proportionate share of the costs for maintenance, repair and upkeep of the portion of South Homestead Road necessary for their safe ingress and egress, based on their use. However, the trial court also found that the defendants’ responsibility for repair, maintenance and upkeep of the private road easement was limited only to costs associated with salting and sanding, snowplowing, keeping the road clear of debris and repair/replacement/repaving of the road and road drains. Landscaping, mowing, irrigation, electrical/lighting and signage were deemed not essential to maintain safe ingress and egress and, therefore, were not included in the necessary costs associated with repair, maintenance and upkeep of the private road.

On appeal, Bayberry argued that the defendants have an obligation to maintain the entire 66-foot-wide private road easement, including not only the paved portion of the private road used for travel, but also the portion located outside of the paved area that includes “such items as grass, irrigation, flowerbeds, bushes, trees, lighting, street signs, traffic signs, and curbs.” Unfortunately, the relevant condominium documents did not address those tangential issues.

The Court of Appeals in this case reviewed the common law regarding private road easements and summarized it as follows:
“An easement is the right to use the land of another for a specified purpose,” Schadewald v Brule, 225 Mich App 26, 35; 570 NW2d 788 (1997), and an easement may be created “by express grant, by reservation or exception, or by covenant or agreement,” Rossow, 251 Mich App at 661 (quotation marks and citation omitted). The “use of an easement must be confined strictly to the purposes for which it was granted or reserved,” Blackhawk Dev Corp, 473 Mich at 41 (quotation marks and citation omitted), and “[t]he owner of the fee subject to an easement may rightfully use the land for any purpose not inconsistent with the easement owner’s rights,” Morrow v Boldt, 203 Mich App 324, 329; 512 NW2d 83 (1994). The language of the instrument that granted the easement determines the scope of the easement holder’s rights. Blackhawk Dev Corp, 473 Mich at 42. “Once granted, an easement cannot be modified by either party unilaterally.” Schadewald, 225 Mich App at 36.
With respect to the repairs and improvements that defendants were required to make, it is well settled that “[t]he making of repairs and improvements necessary to the effective enjoyment of an easement…is incidental to and part of the easement.” Mumrow v Riddle, 67 Mich App 693, 700; 242 NW2d 489 (1976). Thus, defendants are only required to make repairs and improvements to the easement that are incidental to and part of their ability to safely enter and leave their respective properties. See id.
By attempting to impose obligations upon defendants that are beyond maintenance of the easement for ingress and egress, Bayberry is essentially unilaterally attempting to expand the scope of the express easement. 

Looking strictly at the existing language in the association documents, which gave the associations the general right of ingress and egress, the Court of Appeals in Bayberry Group, LLC reasoned that the associations’ proportionate share of the maintenance costs would be limited solely to the paved portion of the private roadway and none of the grass, irrigation, flowerbeds, bushes, trees, lighting, street signs, traffic signs, and curbs. The Court of Appeals held:

[W]e fail to see how maintaining grass, irrigation systems, flowerbeds, bushes, and trees would assist defendants with safely entering and leaving their respective properties. . . . By attempting to impose obligations upon defendants that are beyond maintenance of the easement for ingress and egress, Bayberry is essentially unilaterally attempting to expand the scope of the express easement. Because this is impermissible, we conclude that Bayberry’s argument lacks merit.

When granting private road or other easement rights, the drafter should consider including express language regarding the maintenance responsibilities for the entire private road easement or right-of-way area, specifically including not only the paved roadway itself, but also the landscaping, curbs, street signs, lighting, etc. The common law maintenance requirements for private road easements will not require contributions for landscaping and areas outside that which is necessary to maintain safe passage on the road itself.

This case is somewhat unusual for more modern developments, as most have extensive documents dealing with private road maintenance, landscaping, repair and other matters.
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