Easement created by deed; When the deed was recorded

Given that the trial court mistakenly determined that the 1982 deed containing the easement at issue was not recorded until a decade later, the court vacated and remanded “to allow the trial court to reanalyze this issue with the correct factual understanding that the deed” was recorded in 1982, not 1992. Plaintiff appealed the trial court’s order denying his summary disposition motion, granting defendants’ summary disposition motion, and “holding that plaintiff did not establish an easement over defendants’ land.” The court noted that the date error in the trial court’s written opinion and order did “not appear to be a clerical error given that the trial court went on to analyze” the facts of the case “under Michigan’s race-notice statute, explaining that because the easement was not recorded until 1992, it was recorded after the burdened parcel was sold in 1986, without reference to the easement. The trial court’s legal findings were therefore made on this mistaken factual finding.” The court concluded that “the most prudent course of action is to vacate the trial court’s order and remand for further proceedings . . . .” It noted that, with “this factual issue resolved, the trial court will need to analyze whether a valid easement was created despite it never being recorded on the burdened estate.” It reminded “the trial court and the parties that ‘if the intentions of the original contracting parties are not reflected in the public record, a subsequent bona fide purchaser who has relied upon the public record cannot be bound by those unrecorded intentions.’” In addition, in “‘order to create an express easement, there must be language in the writing manifesting a clear intent to create a servitude. Any ambiguities are resolved in favor of use of the land free of easements.’” Further, when “‘the intent to create an easement is not clear, the issue is to be resolved in favor of use of the land free of an easement.’”