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Adverse Possession of “Gap Parcels” Between Properties in Michigan

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. In a prior article titled Acquiring Title to Your Neighbor’s Property: How to Establish Adverse Possession in Michigan, the article discussed the basic elements of adverse possession in Michigan. As a reminder, 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.

The typical adverse possession case involves a boundary dispute between two adjoining landowners. However, there are times where a “gap parcel” can exist between two pieces of property. This article explores a recent unpublished case in the Michigan Court of Appeals RBPM, LLC v. Kovaleski, unpublished per curiam opinion of the Michigan Court of Appeals, issued December 16, 2021 (Case No. 356267), which addresses the doctrine of adverse possession related to a gap parcel and excellent analysis of numerous legal decisions regarding the doctrine of adverse possession in Michigan. Importantly, this case also addresses the circumstance of just sending a cease-and-desist letter without actually preventing a claim for adverse possession.

 

Facts of RBPM, LLC v. Kovaleski

In RMPM, there was a dispute over a 193-square foot parcel of land (the “gap parcel”) located in Adrian, Michigan, between two pieces of property formerly owned by plaintiff and abutting property owned by defendant. For those readers who prefer a visual diagram of the gap parcel’s location, click here and scroll down to the top of page 2. Defendant lived in Seattle, Washington, from 1989 until either 2013 or 2016 and acquired the gap parcel on June 7, 2000. On July 10, 2000, defendant sent a letter to “Floyd’s Rigging” requesting the removal of the “stones-gravel that you placed on my property.” Defendant also requested replacement of “the fence that you took down on what is now my property.” In the case, there appeared to be no dispute that neither of these demands were met.

Approximately twenty years after the July 2000 letter, defendant began placing blocks on the gap parcel to prevent plaintiff from using the gap parcel and plaintiff filed a complaint to quiet title in the gap parcel in its favor asserting that it could satisfy the elements of adverse possession. After a bench trial, the Court held that plaintiff met all the elements of adverse possession and held that there was no credible evidence presented demonstrating that plaintiff’s possession of the property was interrupted or to dispute plaintiff’s arguments regarding any of the elements of adverse possession. Therefore, the trial court entered a judgment quieting title to the gap parcel in plaintiff’s favor and the Michigan Court of Appeals affirmed the trial court’s decision.

 

Legal Discussion of RBPM, LLC v. Kovaleski

A party claiming adverse possession must show clear and cogent proof of possession that is actual, continuous, open, notorious, exclusive, hostile, and uninterrupted for the relevant statutory period.” Marlette Auto Wash, LLC v Van Dyke SC Props, LLC, 501 Mich 192, 202; 912 NW2d 161 (2018). The statutory period is 15 years. See id.; MCL 600.5801(4). “Determination of what acts or 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). The Court’s decision in RMPM went into great detail about the elements of adverse possession in Michigan and how plaintiff was able to establish all of the necessary elements.

1. Exclusive and Continuous Possession

With regard to the “exclusive” requirement, an adverse possessor must have “the intention of holding [i.e., possessing] the property as his own to the exclusion of all others.” Smith v Feneley, 240 Mich 439, 442; 215 NW 353 (1927). “Possession refers to an exercise of dominion over the property, and there may be degrees even in the exclusiveness of the exercise of ownership.” Jonkers v Summit Twp, 278 Mich App 263, 274-275; 747 NW2d 901 (2008) (quotations marks and citation omitted). However, concurrent possession with the true owner is not exclusive. Id. at 274.

With regard to the “continuous” requirement, possession of a property must be continuous for the 15-year statutory period, but daily and constant use is not always a requirement. See Dummer v United States Gypsum Co, 153 Mich 622, 638; 117 NW 317 (1908). See also Dyer v Thurston, 32 Mich App 341, 344; 188 NW2d 633 (1971) (explaining that use can be “continuous” without being constant so long as the use is “in keeping with the nature and character of the right claimed”).

The 15-year period need not be satisfied by a single owner, and successive owners who are in privity with each other may “tack” their respective periods of adverse use together. Siegel v Renkiewicz Estate, 373 Mich 421, 425; 129 NW2d 876 (1964). Privity is “established by inclusion by reference to the claimed property in the instruments of conveyance or by parol references at the time of the conveyances.” Id.

In RMPM, plaintiff parked vehicles in the parking lot and on the gap parcel continuously for more than 15 years. The trial court was then compelled to address the July 2000 letter from defendant. The trial court held that the letter was insufficient to interrupt plaintiff’s adverse possession of the gap parcel. Importantly, the statutory period for adverse possession is not interrupted unless the true owner reenters the property and remains in possession for at least a year after reentry or files suit within one year. Taggart v Tiska, 465 Mich 665, 672-673; 641 NW2d 240 (2002), citing MCL 600.5868. See also 16 Powell, Real Property, § 91.07[2], pp 91-44 (“The true owner can successfully interrupt the claimant’s unwarranted [but otherwise continuous] adverse possession by either obtaining a judgment against the claimant or by entering the disputed property in an open manner with intent to take and hold possession effectively, excluding the possessor.”). The Court held that although the July 2000 letter from defendant requested that the gravel be removed from the gap parcel, the evidence demonstrated that the gravel was not removed from the gap parcel, the gap parcel was still used by plaintiff for his business, and defendant did nothing to prevent that use until he placed the concrete blocks on the gap parcel in August 2020.

Therefore, the Court held that there was clear and cogent evidence that plaintiff’s possession of the gap parcel was exclusive and continuous throughout the statutory period, notwithstanding defendant’s July 2000 letter.

2. Open, Notorious and Hostile

“In order to support a claim of title by adverse possession, acts of possession must be open and of a hostile character, but it is sufficient if the acts of ownership are of such character as to indicate openly and publicly an assumed control or use such as is consistent with the character of the premises in question.” Houston v Mint Group, LLC, 335 Mich App 545; 968 NW2d 9 (2021). Hostility in the context of an adverse possession claim means the “use of property without permission and in a manner that is inconsistent with the rights of the true owner.” Jonkers, 278 Mich App at 273. With respect to the requirements that the possession be open and notorious, it must be apparent to the property owner and the public that his or her rights are being invaded in an adverse manner. See Monroe v Rawlings, 331 Mich 49, 52; 49 NW2d 55 (1951) (explaining that possession or use must be “of such a character as to openly and publicly indicate an assumed control”) (quotation marks and citation omitted). See also Ennis v Stanley, 346 Mich 296, 301; 78 NW2d 114 (1956) (stating that absent actual knowledge of a hostile claim, “[t]he possession must be so open, visible, and notorious as to raise the presumption of notice to the world that the right of the true owner is invaded”) (quotation marks and citation omitted).

At trial, defendant admitted that plaintiff’s use of the gap parcel was against his interest in the gap parcel. Moreover, defendant’s July 2000 letter demonstrated that defendant had actual knowledge of plaintiff’s use of the gap parcel and even attempted to end plaintiff’s usage of the gaps parcel. Plaintiff’s representative testified that he graveled the gap parcel and regularly parked vehicles on it since 1995 or 1996. Thus, the Court held that there was clear and cogent evidence that plaintiff’s possession of the gap parcel was open, notorious and hostile.

3. Actual and Visible

“[O]ne claiming title by adverse possession must show positive and affirmative acts of ownership.” Barley v Fisher, 267 Mich 450, 453; 255 NW 223 (1934). In RMPM, Plaintiff’s representative demonstrated that plaintiff’s possession of the gap parcel was actual and visible by testifying that he “graveled the whole parking lot” and put up a fence when he purchased the southern portion of Lot 172 in 1995. Moreover, he testified that vehicles continued to be parked on the gap parcel up until the litigation in the case ensued. Thus, the Court held that the actual and visible elements of adverse possession were met.

 

Conclusion

While RMPM is an unpublished decision from the Michigan Court of Appeals, the case provides significant insight into how adverse possession cases related to gap parcels are handled in Michigan and also the importance of actually repossessing property timely. While a cease-and-desist letter can be helpful, and we routinely advise clients to do so, actual repossession before the 15 years elapses can be crucial to defeat a claim for adverse possession. Given that adverse possession cases are intensely fact specific, it is important to contact an experienced Michigan real estate attorney when dealing with adverse possession cases.

Joe Wloszek, Esq. of Hirzel Law, PLC 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 2013-2021, an award given to only 2.5% of the attorneys in Michigan each year.  He was also named a Super Lawyer by Super Lawyers in 2022, 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 jwloszek@hirzellaw.com.

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