In this real estate action, plaintiffs appeal as of right 1 frоm the trial court’s order denying plain tiffs summary disposition pursuant to MCR 2.116(C)(10) and granting defendants summary disposition pursuant to MCR 2.116(I)(2). We affirm.
I. FACTS AND PROCEEDINGS
Defendant Brentwood Farms Development, Inc. (Brentwood Farms), developed the Brentwood Farms Condominium Project (project), located in White Lake Township. The project consists of single family homes built as part of a condominium complex under the auspices of the Michigan Condominium Act, MCL 559.101 et seq. As required under § 8 of the act, Brent-wood Farms executed a master deed for the condominium project on October 25, 1993, and recorded the master deed on November 9, 1993. MCL 559.108. Brentwood Farms attached a site plan as part of the master deed.
On December 22, 1993, plaintiffs signed a land contract to purchase Unit 82 of the
On October 5, 1998, Brentwood Association recorded an easement over Unit 82 for the benefit of Unit 83. In pertinent part the easement stated as follows:
Pursuant to the authority granted in Article IX(C)(1) of said Master Deed, the Association, through its Board of Directors, has authority to grant easements for access purposes. It is because of that authority and because of an error in the locating of the driveway of one unit onto another that in consideration of $1.00, receipt of which is hereby acknowledged, the Association grants the following easement.
There shall be an easement 10 feet wide on the side of Unit 82 that adjoins Unit 83 for proposes of ingress and egress as well as maintenance of the existing driveway and existing landscaping. This easement shall perpetually run with the land until such time, if any, the Co-owner of Unit 83 relocates his driveway to be off of Unit 82. All costs of maintenance, repair, and replacement of that driveway shall be borne by the Co-owner of Unit 83.
Defendants did not seek or obtain plaintiffs’ agreement to the easement before it was recorded. Plaintiffs filed this action alleging thаt defendants had violated the Condominium Act and slandered title to their property by recording the easement, and requesting that the trial court quiet title to their land and remove any encumbrance and easement placed on their land without their permission. Plaintiffs then filed a mоtion for summary disposition, which the trial court denied following a motion hearing. Instead, the trial court granted summary disposition in favor of defendants pursuant to MCR 2.116(I)(2), stating:
The provisions of the Master Deed were expressly accepted by Plaintiffs when they purchased the Unit. The Master Dеed and Bylaws ran with Plaintiffs^] property as a matter of lawand contract. The language of the Master Deed is clear and unambiguous. The Master Deed specifically provides that a driveway is a Common Element. The Master Deed also specifically provides that if any portion of a Common Element encroaches upon another Site, reciprocal easements shall exist for maintenance and it specifically gives the Association the right and the duty to grant an easement for ingress or egress. This Court finds that there is no genuine issue оf material fact that the Master Deed empowered and obligated the defendant Association to grant the easement for the driveway to the Hogan Defen dants. Furthermore, this Court finds that Plaintiffs cannot establish claims of slander of title, breach of condominium documents or violation of the Condominium Act [MCL 559.101 et seq.], because the grant of the easement in the Common Element was lawful and in accordance with the Master Deed. Therefore, Plaintiffs!’] Motion for Summary Disposition is denied pursuant to MCR 2.116(C)(10) and Defendants are entitled to Summary Disposition pursuant to MCR 2.116(f)(2). [4]
H. STANDARD OF REVIEW
A. MOTIONS FOR SUMMARY DISPOSITION
This Court’s review of a trial court’s decision to deny or grant summary disposition is de novo.
Herald Co v Bay City,
B. INTERPRETATION OF CONTRACTS
The construction and interpretation of an unambiguous contract is a question of law that we review de novo.
Henderson v State Farm Fire & Casualty Co,
C. STATUTORY INTERPRETATION
As
Macomb Co Prosecutor v Murphy,
In considering a question of statutory construction, this Court begins by examining the languаge of the statute. We read the statutory language in context to determine whether ambiguity exists. If the language is unambiguous, judicial construction is precluded. We enforce an unambiguous statute as written. Where ambiguity exists, however, this Court seeks to effectuate the Legislature’s intent thrоugh a reasonable construction, considering the purpose of the statute and the object sought to be accomplished. [Citations omitted.]
Unless defined in the statute, every word or phrase of a statute should be accorded its plain and ordinary meaning, taking into account the context in which the words are used,
Phillips v Jordan,
HI. ANALYSIS
On appeal, plaintiffs argue that the trial court erred in finding that the driveway was a common element, and also еrred in finding that Articles IX(A) and (C)(1) of the master deed and § 40 of the Condominium Act, MCL 559.140, required and permitted defendants to grant an easement that in effect authorized the encroachment of the Hogans’ driveway onto Unit 82. We hold that Article IX(A) of the master deed and § 40 of the Condominium Act providе the requisite support for defendants’ actions, and that summary disposition in favor of defendants was appropriate. Article XX(A) provides:
In the event any portion of a Site or a residential structure on a Site or Common Element encroaches upon another Site or Common Element due to . . . survey errors or construction deviations, reciprocal easements shall exist for the maintenance of such encroachment for so long as such encroachment exists, and for maintenance thereof after rebuilding in the event of аny destruction.
Similarly, § 40 of the Condominium Act, as constituted when the easement was granted, provides: “To the extent that a condominium unit or common element encroaches on any other condominium unit or common element, ... by reason of any deviation from the plans in the сonstruction
Here, the evidence clearly demonstrates that the Hogans’ driveway encroached on plaintiffs’ property because of a staking and survey error that occurred before the construсtion of the Hogans’ home on the condominium site. Thus, the driveway encroachment occurred as the result of a construction deviation. As
the trial court correctly noted, “[a]n easement may be created by express grant, by reservation or exception, or by сovenant or agreement.”
Michigan State Hwy Comm v Canvaser Bros Building Co,
Whether the trial court’s finding that the driveway was a common element is cоrrect is irrelevant to our decision. Article III(O) of the master deed defines “site,” “unit,” or “condominium” as “the enclosed space constituting a single complete residential site in Brentwood . . . and shall have the same meaning as the term ‘Condominium Unit’ which is defined in the Act.” Subsection 4(3) of the act defines condominium unit as “that portion of the condominium project designed and intended for separate ownership and use, as described in the master deed, regardless of whether it is intended for residential, office, industrial, business, recreational ... or any other typе of use.” MCL 559.104(3). Further, subsection 3(7) defines “common elements” as “the portions of the condominium project other than the condominium units.” MCL 559.103(7). Thus, if the driveway is not a common element, it is part of the condominium unit and Article IX(A) permits and requires the disputed easement in this case.
Plaintiffs also сontend that this case should be governed by MCL 559.140 as amended by
MCL 559.140, as amended by
To the extent that a condominium unit or common element encroaches on any other condominium unit or common element... by reason of any deviation from the plans in the construction . . . , a valid easement fоr 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. [Emphasis added.]
Statutes are to be applied prospectively unless the Legislature’s intent for retroactive application is clear.
Cheron, Inc v Don Jones, Inc,
The easement at issue here was recorded on October 5, 1998. Thus, in order for the amendment to have any import on plaintiffs’ case, the Legislature must have clearly intended the amendment to apply retroactively.
Cheron, supra.
Because
IV. CONCLUSION
We conclude that Article IX(A) and MCL 559.140, regardless of whether the driveway was a common element or part of the condominium unit, provided the Hogans’ with an easement over plaintiffs’ property. Consequently, the trial court properly granted summary disposition to defendants pursuant to MCR 2.11600(2).
Affirmed.
Notes
Defendants argue that because the third-party plaintiffs Hogan had third-party claims and cross-claims remaining to be decided by the trial court when it granted summary disposition for defendants, plaintiffs were not entitled to appeal as of right and this Court lacks jurisdiction absent an order granting plaintiffs leave to appeal. See MCR 7.212(C)(4) and (D)(2). However, defеndants did not identify this issue as a question presented, MCR 7.212(D)(3), and following plaintiffs’ appeal filing, the trial court granted the Hogans’ stipulation to withdraw their remaining claims so that this appeal could be heard in an expeditious fashion. Because defendants did not properly preserve this issue for appeal, MCR 7.212(D)(3), the remaining issues before the trial court were subsequently dismissed, and the resolution of this issue is not dispositive of this case, we decline to address it.
The lower court record does not contain the exact purchase date of Unit 83. Defendants Hоgans’ brief on appeal contends Unit 83 was purchased on October 4, 1996. Both Brentwood’s and plaintiffs’ briefs claim that Unit 83 was purchased in 1997. Nonetheless, it is undisputed that Unit 83 was purchased after plaintiffs purchased Unit 82.
The by-laws were not made a part of the lower court record, and while we cannot verify the accuracy of the assertion that side entry garages were required in the project, plaintiffs do not dispute this contention.
4 In its opinion, the trial court quoted directly from Article IX(A) and (C) of the master deed and MCL 559.140, and apparently relied on аll these provisions in reaching its conclusion. We note, however, that the association expressly relied solely on Article IX(C)(1) of the master deed in recording the easement over Unit 82. Accordingly, while the trial court may have erred in relying on Article IX(A) and MCL 559.140 in support of its ruling when defendants relied solely on Article IX(C)(1) to support the easement, because plaintiffs did not raise the issue below or on appeal it has been waived. See
Colista v Thomas,