Michigan Appellate Court Confirms That Even A “Willful Trespasser” Can Obtain Title To Property By Adverse Possession

Earlier this year, Joe Wloszek published a blog on adverse possession in Michigan and explained the elements that a party claiming ownership to property legally “owned by another” must show to obtain title to that other property.  As that article explains, for a party to be entitled to property legally owned by another, it must show that, for a period of 15 years, that its possession of that other property was: (1) actual; (2) visible; (3) open; (4) notorious; (5) exclusive; (6) continuous; (7) hostile or inconsistent with the rights of the original property owner and without the owner’s permission; and (8) under a cover or claim of right.  Recently, in an unpublished decision, the Court of Appeals focused on the open, exclusive and continuous elements of an adverse possession claim in the case of Debruyn v Dilorenzo, unpublished per curiam opinion of the Court of Appeals dated July 15, 2021 (Docket No. 351253).  In that case, the Court also confirmed that even a willful trespasser can rely on adverse possession to quiet title to another’s property.

Pertinent Facts from the Debruyn Case

In the Debruyn case, the property at issue was a vacant parcel of land in the St. Clair Country Club Estates Subdivision known as “Lot 227.”  The subdivision was originally platted in 1926 and consisted of 300 parcels, each 40 feet wide.  As of the date of the trial in the underlying case, there were only 15 structures within the subdivision, and the majority of those were located in the south portion of the development serviced by gravel roads.  The plaintiff’s home was located on three parcels (Lots 228, 229 and 230) and Lot 227 is an empty, grassy lot located between the plaintiff’s home and Lake Park Drive—which bordered the southern end of the subdivision.  Plaintiff’s home was owned by members of her ex-husband’s family for decades.

The defendants own over 200 of the lots in the subdivision and the majority of those lots are in the northern part of the subdivision, which is completely undeveloped.  During the case, the defendants claimed that they were in the process of developing their property and had begun construction on a model home across from plaintiff’s home.  As part of the development, the defendants claimed that they wanted to use Lot 227 for signage purposes and there was conflicting evidence as to whether or not the sewer and water system for the continuing development would go through, or service, Lot 227.

The lawsuit brought by the plaintiff was to quiet title to Lot 227, and the basis for the quiet title action was adverse possession.  In Michigan, a quiet title action is an equitable action by one party who claims any right in, title to, equitable title to, interest in, or right to possession of land against another party who claims or might claim an interest inconsistent with the interest claimed by the plaintiff. At a bench trial, the plaintiff testified that her family maintained Lot 227 by mowing the grass and raking the leaves after they became the owner of the home on Lots 228-230 in 2003.  Even further, she testified that her family had used Lot 227 for various recreational activities over the years, including the creation of a hockey rink in the winter, playing other sports and games in the warmer months and planting a garden with roses and tomatoes.  Additionally, plaintiff’s relatives used Lot 227 for parking, and when construction was performed on the plaintiff’s home, the materials were stored on Lot 227.  The defendants admittedly had not used Lot 227, but did put forth evidence that they planned on using it in the future, and had a surveyor come onto that lot one time over the past 15 years.

The Court of Appeals Rulings

The defendants’ primary arguments as to why the plaintiff’s claim should fail were: (1) Lot 227 is “wild land” and therefore, not subject to being adversely possessed by the plaintiff; (2) there cannot be adverse possession when the defendants did not know that the plaintiff was using the property; (3) the plaintiff had not continuously used Lot 227 for 15 years; and (4) public policy dictates that a party should not be able to obtain title to a property when that party knows that it is trespassing.  The trial court ruled in favor of the plaintiff and quieted title to Lot 227 in her favor.

First, the Court of Appeals sustained the trial court’s decision that Lot 227 was not “wild land” but stopped short of saying that a party cannot obtain title to such land by adverse possession.  As the Court of Appeals stated, the plaintiff maintained and used Lot 227 for recreational activities, parking and gardening and it was just a grassy lot without any trees.  The only “wild land” in the subdivision was the area owned by the defendants which had not been maintained over the years.

The Court of Appeals also rejected the defendants’ argument that the plaintiff’s adverse possession claim should be denied because the defendants did not know that the plaintiff was using Lot 227.  As the Court stated, “[to constitute ‘adverse holding,’ [the] true owner must have actual knowledge of hostile claim, or possession must be so open, visible, and notorious as to raise presumption of notice of adverse claim.” Doctor v Turner251 Mich 175, 187231 NW 115 (1930) (emphasis added).  The Court of Appeals went on to say that, even if the defendants did not know the plaintiff was using Lot 227, they should have known, because a simple visit to the property during the warmer months would have shown that someone (who was not them) was mowing the grass and maintaining the lot.  In other words, the multiple uses, year in and year out, by the plaintiff and her family constituted constructive notice to the defendants that the plaintiff was possessing Lot 227 and this is all that is required.

The defendants also argued that the plaintiff’s possession of Lot 227 was only “occasional trespass” and not a continuous use.  In Michigan, in order to prove the continuous element of an adverse possession claim, the party seeking title need show something other than an occasional trespass or act of ownership (Bankers Trust Co of Muskegon v Robinson280 Mich 458, 465273 NW 768 (1937)), but, as the Court of Appeals stated, the use by the claimant does not have to be “constant.”  See, Dyer v Thurston32 Mich App 341, 344188 NW2d 633 (1971); see also Dummer v US Gypsum Co, 153 Mich 622, 631; 117 NW 317 (1908). The testimony presented to the trial court showed that the plaintiff and her family used Lot 227 nearly year-round for annual, seasonal recreational activities. Accordingly, her possession of Lot 227 was continuous given the residential character of the property.  The Court also rejected the defendants’ claim that the plaintiff’s use for more than 15 years was interrupted because the defendants had a surveyor come onto Lot 227 one time, and that the defendants were arranging for sewer and water service for the remainder of the subdivision that may or may not have impacted Lot 227.  In doing so, the Court stated that the focus in an adverse possession case is not on a proposed use by the defendants, but instead, on whether the plaintiff had “possessed” the property continuously over a period of time exceeding 15 years (which the Court stated that she had).

The defendants also made a public policy argument at the Court of Appeals level.  The defendants had failed to raise this argument before the trial court entered judgment, but the Court of Appeals analyzed and rejected it, nonetheless.  The basic argument was that the plaintiff’s claim to Lot 227 should be denied because she knew that she was a trespasser on the land.  The Court of Appeals stated that the doctrine of adverse possession has been the law in Michigan since 1846 and it could not overrule a longstanding doctrine simply because one party claimed that it violates public policy.  Even further, the Court affirmatively held that a “willful” trespasser can obtain title to property through adverse possession in Michigan.  The primary reasoning given by the Court of Appeals was that, if the plaintiff had permission to enter onto Lot 227, then her adverse possession claim would have to fail because her possession would not be “hostile”.  Even further, as the Court of Appeals stated, it is not up to the Court to make public policy determinations regarding statutes passed by the legislature.  In doing so, the Court cited to Rembert v Ryan’s Family Steak Houses, Inc, 235 Mich App 118, 131; 596 NW2d 208 (1999) (“[P]ublic policy pronouncements of the Michigan Legislature, enacted as statutes, are binding on this Court.”) and Okrie v Michigan, 306 Mich App 445, 459; 857 NW2d 254 (2014) (“[Courts] may not consider the wisdom of statutes properly enacted by the Legislature.”).

Conclusion

There are multiple takeaways from the Debruyn case. First, proving title to property through adverse possession can be a time-consuming and costly endeavor.  The Debruyn case proceeded for years, and even was appealed, all over an empty lot, even when the defendants owned 200 other lots in the development.  Second, the Court of Appeals in that case made it clear that even an intentional trespasser can obtain title to property via adverse possession in Michigan.  Therefore, if you are a property owner and another party is using your property (or part of your property) on a regular basis, it is critical to take steps to stop that use before the expiration of the 15-year period or at least make it known that the use is permitted (which also could defeat an adverse possession claim but maybe not an acquiescence claim).  Third, it stresses the critical evidentiary support for adverse possession claim that one party maintains another’s property (mowing the grass, putting up a fence).  As such, if you are a party seeking to obtain title to another property that you maintain under the theory of adverse possession, documenting the maintenance is suggested.  There are multiple cases in Michigan where the primary proof of another party’s “possession” is the maintenance of the other property, and this was an important factor at both the trial court and Court of Appeals level in the Debruyn case.  These boundary dispute matters can be very fact-intensive and difficult to understand, and if you have any such dispute, it is suggested that an adverse possession attorney or a quiet title attorney be brought in to provide guidance and assistance to help you navigate through the issues.

Mr. Toosley focuses his practice on real estate litigation, zoning and land use, construction and financial services litigation.  Over the course of his career, he has represented owners, landlords, condominium associations, lenders and all parties in the construction chain, handling all aspects of real estate-related disputes, including construction defect cases, payment and landlord-tenant disputes as well as real estate foreclosures, mechanic’s lien cases and fraud and business tort claims in state and federal court as well as in mediations and arbitrations throughout the United States.

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