In Carney v Haskell, an unpublished Michigan Court of Appeals opinion, a dispute arose between adjacent unit owners in a site condominium as to the location of the defendant’s driveway. Plaintiff sued seeking to remove the encroachment. Defendants denied any encroachment and asserted adverse possession and acquiescence. On cross motions for summary disposition, the court found that MCL 559.140 applied and dismissed Plaintiff’s case. Plaintiff appealed.
MCL 559.140 provides "To the extent that a condominium unit or common element encroaches on any other condominium unit or common element, whether by reason of any deviation from the plans in the construction, repair, renovation, restoration, or replacement of any improvement, or by reason of the settling or shifting of any land or improvement, a valid easement for the encroachment shall exist. This section shall not be construed to allow or permit any encroachment upon, or an easement for an encroachment upon, units described in the master deed as being comprised of land and/or airspace above and/or below said land, without the consent of the co-owner of the unit to be burdened by the encroachment or easement.”
The trial court ruled that MCL 559.140 applied and granted defendant an easement. The Court of Appeals held that this section, when read in conjunction with other sections of the MI Condominium Act regarding relocation of boundaries, was meant to apply only to developer deviations in construction. Because there was no testimony whether the driveway was poured by the developer or a co-owner, or when the driveway was poured, there remained issues of fact to be developed and decided in the trial court. The case was remanded.