[1]Brief Fact Summary. The McLean (Defendant) owned a lot in a residential neighborhood, where they began construction of a gas station. Plaintiffs, who are neighboring landowners, sued to enjoin the construction.
Synopsis of Rule of Law. A reciprocal negative easement occurs if the owner of a parcel of lots, which are related, sells one with restrictions of benefit to the land retained, the servitude becomes mutual, and during the period of the restraint, the owner of the lots retained can do nothing forbidden to the owner of the lot sold.
Facts. Defendant and her husband own the west 35 feet of lot 86 in the Green Lawn subdivision in Detroit. On this lot, there is a house, which fronts an avenue. In the back of the house, there is an alley, where Defendants started construction on the gas station. The neighboring property owners sued to enjoin the construction. The lower court granted the injunction. The neighborhood in question is a high-grade residence street and the Plaintiffs, as well as the Defendants, trace their title back to the original proprietors of the subdivision. Plaintiffs contend that the Defendants were subject to a reciprocal negative easement, which limited the use of the lots in the neighborhood to residential use only.
Issue. Is Defendants’ lot subject to a reciprocal negative easement?
Held. Yes. Decree affirmed with modification.
If the owner of a parcel of lots, which are related, sells one with restrictions of benefit to the land retained, the servitude becomes mutual, and during the period of the restraint, the owner of the lots retained can do nothing forbidden to the owner of the lot sold. This is a reciprocal negative easement. The easement runs with the land sold, and remains with the land until its expiration by term or when something destroys it.
The reciprocal negative easement is not personal to the owners, but runs with anyone who takes the land having actual or constructive notice of the reciprocal negative easement. The reciprocal negative easement must originate with a common owner, and are never retroactive.
In this case the evidence is that certain lots of the common parcel originally owned by the McLaughlins were sold to both the Defendants’ predecessors in title and the Plaintiffs’ predecessors in title, some with a restriction against use of the lots for commercial purposes, some without. The court found that the facts showed that a reciprocal negative easement had attached to Defendants’ land, even though the restrictions were not written in Defendants’ deed.
The Defendants were held to have constructive notice of the reciprocal negative easement by virtue of the recording acts of the jurisdiction and by a consideration of the usage extant in the neighborhood at the time of purchase by the Defendants. The street was clearly used as a residential neighborhood, and the Defendants should have been on notice of this fact.
The decree of the lower court ordered that any work done on the gas station be torn down. This court modifies that decree to state that the work done, need not be torn down if it can be used in accordance with the requirements of the reciprocal negative easement in place.
Discussion. The court’s decision encompasses a broad definition of sufficient notice. The Defendants had made a title search and abstract, which showed, that no restrictions were recorded against the use of the lot in question. The court was intent on maintaining the character of the neighborhood.