In Michigan, an individual may gain ownership of real property even if that person does not have a deed or hold legal title to the property. The concept is called adverse possession and most often, but not always, occurs due to a boundary dispute between two neighbors. Adverse possession can also occur by a trespasser to land that occupies the land for fifteen (15) years. To establish adverse possession, an individual must demonstrate possession of the real property for a period of fifteen (15) years and that the possession has been actual, visible, open, notorious, exclusive, continuous, hostile and under a cover or claim of right. This article explores the law that governs adverse possession and the elements necessary to establish adverse possession in Michigan.
Controlling Michigan Law
MCL 600.2932(1) provides that “Any person, whether he is in possession of the land in question or not, who claims any right in, title to, equitable title to, interest in, or right to possession of land, may bring an action in the circuit courts against any other person who claims or might claim any interest inconsistent with the interest claimed by the plaintiff, whether the defendant is in possession of the land or not.” To establish legal ownership over the disputed land, the Michigan Court Rules, specifically MCR 3.411, provides the requirements for filing a complaint to determine interests in land. In addition, MCL 600.5801(4) provides for the fifteen (15) year requirement to obtain adverse possession.
Numerous published cases in Michigan address adverse possession. While not exhaustive, some examples include: Davids v Davis, 179 Mich App 72; 445 NW2d 460 (1989); McQueen v Black, 168 Mich App 641; 425 NW2d 203 (1988); Mackinac Island Dev Co v Burton Abstract & Title Co, 132 Mich App 504; 349 NW2d 191 (1984); Rose v Fuller, 21 Mich App 172; 175 NW2d 344 (1970), lv den 384 Mich 751 (1970) and Burns v Foster, 348 Mich 8; 81 NW2d 386 (1957).
Elements of Adverse Possession
To establish adverse possession in Michigan, the person seeking adverse possession must demonstrate the following elements:
- Actual. Generally, the occasional or periodic entry upon land does not constitute actual possession. Ennis v Stanley, 346 Mich 296, 301; 78 NW2d 114 (1956) quoting McVannel v Pure Oil Co, 262 Mich 518, 525; 247 NW 735 (1933). However, it has been acknowledged that the “[d]etermination of what acts or uses are sufficient to constitute adverse possession depends upon the facts in each case and to a large extent upon the character of the premises.” Burns v Foster, 348 Mich 8, 14; 81 NW2d 386 (1957). “It is a well-recognized rule in Michigan that the acts required to support a finding of adverse possession are sufficient if those acts are consistent with the character of the premises in question,” Ogorek v Loisell, 33 Mich App 245, 248; 189 NW2d 738 (1971), lv den 385 Mich 766 (1971). Thus, the first element is to determine whether there has been actual entry to land.
- Visible. The person adversely possessing the land must be visible and not ‘sneaky’ such as an individual from sneaking onto another’s property each night for fifteen (15) years and then claiming that the property is now theirs.This requirement is to ensure that the owner of land would be able to see if another individual is adversely possessing their land. The Court in Mackinac Island Dev Co v Burton Abstract & Title Co, 132 Mich App 504; 349 NW2d 191 (1984) considered numerous factors such as the erection and maintenance of a fence, the maintenance of the land and the use of the land such as picnics and skiing. While these are not dispositive factors in and of themselves, this information did impact the Court’s view of the conduct of the parties and whether the actions were visible.
- Open. Similar to the visible element, the adverse possession must be out in the open by the person adversely possessing the land. This element focuses on whether there are open acts of ownership exercised over the property. See Davids v Davis, 179 Mich App 72; 445 NW2d 460 (1989). In addition, the Davids court also looked to whether there was any evidence that the original owner of the property made use of the property. Similar to the “visible” element, the requirement that the actions or dominion of the land be out in the open is a check to ensure that the adverse possessor is not acting surreptitiously or in a ‘sneaky’ manner. Often times, but not always, vacant parcels of land with no development for fifteen (15) years or more are left fallow and rarely maintained or used by the original owner. An adverse possessor may take actions out in the open to demonstrate this element of adverse possession.
- Notorious. Notorious does not mean being well known or famous for doing some bad deed. Rather, in the legal sense, notorious means the occupation of real property in a manner that anyone can observe as if the person using the land is the true owner of the property. See Davids v Davis, 179 Mich App 72; 445 NW2d 460 (1989). Notorious is often tied to the concepts of visible and open outlined above. The rationale behind the ‘notorious’ element is that the original property owner should be given every opportunity to notice the behavior of the adverse possessor and stop them prior to the fifteen years elapsing. Instead, often we see a landowner not care about someone performing actions on the landowner’s land or, instead, be so absent from the property that the original owner does not even realize that the adverse possession is taking place. Simply, notorious looks at the actions of the parties and who is acting like the true owner of the property at issue.
- Exclusive. Exclusivity is the intention of holding the disputed property as your own to the exclusion of all others. See Connelly v. Buckingham, 136 Mich App 462; 357 NW2d 70 (1984). Examples of exclusive use may include cutting the grass, trimming trees, planting flowers, installing sprinklers and other acts of dominion demonstrating that the property is exclusively your property.
- Continuous. Continuous refers to the fifteen (15) year time frame required for adverse possession under MCL 600.5801(4). Most often, a person challenging adverse possession will claim that they interrupted the fifteen (15) year timeframe thereby seeking to avoid an adverse possession claim. Whether that is true is often fact specific and really depends on when the person first claims they ‘interrupted’ the adverse possession. If the interruption is after the fifteen (15) year statutory timeframe has already expired, then that is insufficient. The goal of the continuous requirement is to ensure compliance with MCL 600.5801(4). Also, often times the person seeking adverse possession will need to ‘tack’ on a prior owner’s timeframe in order to reach the requisite fifteen (15) year statutory time frame. For example, a person seeking adverse possession is permitted to add his predecessor’s period of possession if they can establish privity of estate in an instrument of conveyance such as a deed or parol references at the time of the conveyance. See Dubois v Karazin, 315 Mich 598, 605-606; 24 NW2d 414 (1946); Siegal v Renkiewicz Estate, 373 Mich 421, 425; 129 NW2d 876 (1964) and Caywood v Dep’t of Natural Resources, 71 Mich App 322, 334; 248 NW2d 253 (1976), lv den 399 Mich 845 (1977).
- Hostile. Hostile does not mean violent, aggressive or unfriendly. Instead, hostile refers to the usage of land that is inconsistent with the rights of the original property owner and without the owner’s permission. As the Court in Connelly v. Buckingham, 136 Mich App 462; 357 NW2d 70 (1984) held:
As between coterminous landowners where a question of boundary line is presented, when parties agree upon the location of a line fence or one of them proceeds to enclose his property and erects a fence intended as a line fence and holds actual and exclusive possession to it as such, his possession is adverse * * *. The controlling fact is one of intention and if there is an inference arising from the evidence that there was an intention on the part of the [possessor] to hold and enjoy the property up to the line claimed * * * as the true dividing line between the property, with the assent or apparent recognition of it as such on the part of [the adjoining landowner] and his predecessors in title for stated period, this is sufficient to discharge the complainant’s burden of proof. And if the possessor considered and claimed the land up to the established line as her own, the possession is hostile even though she is claiming more than she owns and claims by mistake of fact. Though the established division line might have been erroneous in fact, if it may be inferred that the fence was believed to be the true line and the claim of ownership was to the fence, the possession is adverse and `does not originate in an admitted possibility of a mistake.
- Under a Cover or Claim of Right. The Court in Connelly v. Buckingham, 136 Mich App 462; 357 NW2d 70 (1984) stated, ‘“Claim of title’ is where one enters and occupies land, with the intent to hold it as his own, against the world, irrespective of any shadow or color or right or title.” (citation omitted). The Court of Appeals held that it was not necessary that the party in possession “should have expressly declared his intention to hold the property as his own, nor need his claim thereto be a rightful one.” The mere fact of actions and conduct that demonstrates a claim of ownership is enough to meet this element.
Establishing or defending against an adverse possession claim can be fact intensive particularly having to go back fifteen (15) years or more, particularly when there is tacking involved with a prior occupant of the property. However, often times the history of the parties is readily apparent with one side having the better argument or justification through demonstrable evidence that they are the true owner or possessor of land. Thus, we often instruct potential clients to provide as much information and documents as possible to know the best strategy when seeking adverse possession or defending against a claim for adverse possession. If you have a boundary dispute or are dealing with issues related to adverse possession or the related concept of ‘acquiescence’ which will be addressed in a future article, please contact a knowledgeable real estate attorney.
Joe Wloszek is an attorney at Hirzel Law, PLC and leads the Real Estate Litigation Department. Mr. Wloszek focuses his practice on residential and commercial real estate disputes, condominium and homeowner’s association law, commercial litigation, large contractual disputes, and related real estate matters. Mr. Wloszek has been named a Super Lawyers Rising Star in Real Estate Law from 2013-2020, an award given to only 2.5% of the attorneys in Michigan each year. He was also named a Top Lawyer in commercial law by DBusiness Magazine in 2014, a Michigan Top Lawyer in real estate law by Michigan Top Lawyers in 2016 and the Pro Bono Volunteer Attorney of the Year in 2014 by Michigan Community Resources. He is also a Certified Real Estate Continuing Education Instructor through the State of Michigan and the former Chair of the Oakland County Bar Association Real Estate Committee. He can be reached at (248) 720-5762 or firstname.lastname@example.org.