In Michigan, property line disputes amongst neighbors can be contentious and cause lasting enmity. However, parties to a boundary dispute often aggressively protect their property rights and each respective side can genuinely believe that the land in dispute is theirs. Thus, two related doctrines emerge when addressing property disputes: adverse possession and acquiescence. Historically, adverse possession and acquiescence are both based upon the concepts of laches and estoppel. See McGee v. Eriksen, 51 Mich App 551; 215 NW2d 571 (1974). In a recent published decision in Houston v Mint Group, LLC, et al., ___ Mich App ___; ___ NW2d ___ (2021) (Docket No. 353082), the Michigan Court of Appeals held that a party may maintain a claim for both adverse possession and for acquiescence at the same time and a party may win under either theory. In a prior article, I addressed the elements of adverse possession and the requirements to be successful on an adverse possession claim in Michigan. This article addresses the three separate theories of acquiescence in Michigan when handling property line disputes.
The Three Theories of Acquiescence in Michigan
Under Michigan law, parties may acquiesce to a new property boundary line. Walters v Snyder, 239 Mich App 453, 456-457; 608 NW2d 97 (2000). “[A]cquiescence is established when a preponderance of the evidence establishes that the parties treated a particular boundary line as the property line.” Mason v City of Menominee, 282 Mich App 525, 529-530; 766 NW2d 888 (2009) (quotation marks and emphasis omitted), superseded on other grounds by statutory amendment of MCL 600.5821 pursuant to 2016 PA 52. When there has been acquiescence, the boundary line becomes ‘fixed.’ Johnson v. Squires, 344 Mich 687; 75 NW2d 45 (1956). The three theories of acquiescence include: “(1) acquiescence for the statutory period; (2) acquiescence following a dispute and agreement; and (3) acquiescence arising from intention to deed to a marked boundary.” Sackett v Atyeo, 217 Mich App 676, 681; 552 NW2d 536 (1996).
1. Acquiescence for the Statutory Period
The first theory of acquiescence is acquiescence for the statutory period. In Michigan, the statutory period for acquiring property by acquiescence is 15 years. MCL 600.5801(4); Mason, 282 Mich App at 529. A claim of acquiescence for the statutory period requires a showing that the property owners treated a boundary line or marker as the property line for 15 years. Walters, 239 Mich App at 457-458; see also Killips v. Mannisto, 244 Mich App 256, 260; 624 NW2d 224 (2001) (“The doctrine of acquiescence provides that where adjoining property owners acquiesce to a boundary line for at least fifteen years, that line becomes the actual boundary line.”). The Michigan Supreme Court has repeatedly held that a boundary line long acquiesced in and treated as the true line should not be disturbed on the basis of new surveys. See Houston citing Johnson, 344 Mich at 692.
If a landowner has not owned the property for 15 years, the question arises whether the landowner can ‘tack’ on prior time from the landowner’s predecessor in title. The answer is yes. “The acquiescence of predecessors in title can be tacked onto that of the parties in order to establish the mandated period of fifteen years.” Killips, 244 Mich App at 260. “Proof of privity is not necessary, however, to employ tacking of holdings to obtain the 15-year minimum under the doctrine of acquiescence[;] [t]herefore, when successive neighboring landowners use the property as marked by monuments . . . as if the monuments were accurate, for a period of 15 years, they have fixed the property line by acquiescence.” Siegel v Estate of Renkiewicz, 373 Mich 421, 426; 129 NW2d 876 (1964). Unlike adverse possession, a claim of acquiescence does not require that possession of the land was hostile or without permission. Walters, 239 Mich App at 456. In Wood v Denton, 53 Mich App 435, 439-440; 219 NW2d 798 (1974), the Michigan Court of Appeals explained that “[o]nly when there has been some agreement, whether tacit or overt, as to the location of the boundary does the question of acquiescence become important.” The underlying reason for the doctrine of acquiescence is the promotion of peaceful resolution of boundary disputes. Killips, 244 Mich App at 260.
The Michigan Court of Appeals recently reviewed the doctrine of acquiescence in Houston. In that case, a retaining wall was treated as the true boundary for more than 15 years, even though there was a later dispute based upon the lot lines in a later survey. As new and more detailed GIS mapping software becomes available to the public, disputes over boundary lines previously dormant or unknown are increasingly arising and new more detailed surveys become available. Thus, this theory of acquiescence places a time restriction of 15 years and then the ‘true line’ becomes the true boundary line as both a matter of fact and as a matter of law. See Hanlon v. Ten Hove, 235 Mich 227; 235 Mich 227, 233; 209 NW 169 (1926).
2. Acquiescence Following a Dispute and Agreement
The second theory of acquiescence is acquiescence following a dispute and agreement. Under this theory, a dispute arises over the boundary line and the parties mutually agree to resolve the dispute as to the location of the boundary line. Unfortunately, some time thereafter the dispute continues, most often when one of the original parties to the dispute sells or otherwise transfers their property and the new owner challenges the prior agreement. “It has been frequently held in this state where parties by mutual agreement, and for that express purpose, meet and fix a boundary line, and thereafter acquiesce in the line so established between them, such line will be considered the true line between them, notwithstanding the period of acquiescence falls short of the time fixed by the statute of limitations for gaining title by adverse possession.” Cochran v. Milligan, 359 Mich 148, 151; 101 NW2d 292 (1960) quoting Jones v. Pashby, 67 Mich 459; 35 NW 152 (1887). Thus, this theory removes the 15 year time requirement needed for acquiescence for the statutory period and instead focuses on the parties’ conduct, agreement and actions afterwards as to the agreed upon location of the boundary line.
3. Acquiescence Arising from Intention to Deed to a Marked Boundary
The third theory of acquiescence is acquiescence arising from the intention to deed to a marked boundary. This circumstance, while rare, occurs when a landowner’s predecessors in interest intend to deed to a particular location even if that boundary location is wrong. “It must be presumed that description in later conveyances by one of these parties, necessarily involving such boundary, are intended to refer to the boundary so located on the ground and not to some other imaginary line or point which might have been taken in the absence of such location. Lapse of time is not involved in the situation, nor a compromise line after dispute, but, rather, an identification of intended location by those who are to be affected.” Daley v. Gruber, 361 Mich 358; 104 NW2d 807 (1960). The Court in Daley held, “[W]here the property line between two estates is indefinite or unascertained, the owners may, by parol agreement, establish a division line, and the line thus defined will afterwards control their deeds notwithstanding the statute of frauds.” Daley, 361 Mich at 362. Thus, this theory removes the 15 year time requirement for acquiescence for the statutory period or the compromise from an acquiescence after a dispute and agreement. Rather, this theory solely focuses on the parties’ intent to deed to a marked boundary even if that marked boundary is later determined to be in error.
When reviewing boundary line disputes in Michigan, it is important to review both the requirements of adverse possession and the three theories of acquiescence. Again, the underlying reason for the doctrine of acquiescence is the promotion of peaceful resolution of boundary disputes. Killips, 244 Mich App at 260. Therefore, involving a real estate attorney early in the process to 1) review the history of the parcels of property and 2) the actions by the current (and potentially former) owners of the properties is crucial to analyze the respective property rights of the parties particularly given the technical nuances of both adverse possession and acquiescence in Michigan.
The team at Hirzel Law, PLC is composed of award-winning real estate attorneys that can offer quality representation for Michigan clients. Regardless of if you are a commercial real estate developer or individual homeowner, our real estate attorneys can help. We fully understand how unique and complex the challenges that our clients may face, and our real estate attorneys are prepared to help in whatever way necessary. Contact Hirzel Law online or call 248-986-2921 (Farmington) or 231-486-5600 (Traverse City) or 616-319-9964 (Grand Rapids) to learn how our Michigan real estate lawyers can help protect your Michigan real estate investment today.