Ordinarily, the rights of a property owner are spelled out in a deed properly recorded at the county register of deeds in Michigan. However, many property owners will be surprised to learn that it is possible for a trespasser or squatter to take possession of a portion of real estate without the owner’s permission. This is based on ancient doctrine known as adverse possession which is still valid under Michigan’s common law. Property owners should have a basic awareness of what it is, how it works, and what can be done to prevent it from happening. Adverse possession is very fact-specific and certain criteria must be met for the trespasser to be successful.
“To establish adverse possession, the party claiming it must show clear and cogent proof of possession that is actual, visible, open, notorious, exclusive, continuous and uninterrupted for the statutory period of 15 years, hostile and under cover of claim of right.” Beach v Township of Lima, 489 Mich 99. 106; 802 NW2d 1 (2011). There are very specific elements that must be proven by the claimant:
- Actual – Actual possession may be shown by cutting grass or timber, digging ditches, paying general and special taxes, or building fences. Curtis v Campbell, 54 Mich 340; 20 NW 69 (1884). “A mere claim of title, no matter how long asserted, will not ripen into title”, and “occasional or periodical entry upon land does not constitute actual possession.”
- Visible – “The possession must be more than a possession which will enable a person on the ground of a possessory title to maintain trespass or ejectment against a stranger.” McVannel v Pure Oil Co, 262 Mich 518, 526; 247 NW 735 (1933). It must be apparent enough that the owner could have gone to court and obtained a judgment against the trespasser.
- Open – “In order to make good a claim of title by adverse holding, the true owner must have actual knowledge of the hostile claim.” McVannel v Pure Oil Co, 262 Mich 518, 525; 247 NW 735 (1933). If the possessor does not make clear to the owner that he or she intended to claim title before the 15-year period (or it is not obvious from their actions), then this element is not satisfied.
- Notorious – The possession must be so notorious “as to raise the presumption of notice to the world that the right of the true owner is invaded intentionally, and with the purpose to assert a claim of title adversely to his, so that if the true owner remains in ignorance it is his own fault.” McVannel v Pure Oil Co, 262 Mich 518, 525-526; 247 NW 735 (1933).
- Exclusive – The claimant must have exclusively used the portion of the property claimed, meaning that the true owner did not use the claimed portion at all during this period. In Rozmarek v Plamondon, 419 Mich 287; 351 NW2d 558 (1984), plaintiff claimed a lot owned by defendants (who controlled a lumber company nearby) should belong to him though adverse possession due to various activities he deducted on site over the years, excluding other people from the property. However, plaintiff maintained a railroad spur for years that crossed the property from their lumber company. The Michigan Supreme Court found that “[t]he operation of the railroad would destroy any claim of exclusivity.”
- Continuous And Uninterrupted For Fifteen Years – “There must be such continuity of possession as will furnish a cause of action for every day during the whole period required to perfect title by adverse possession.” McVannel v Pure Oil Co, 262 Mich 518, 526; 247 NW 735 (1933). “Occasional trespasses or acts of ownership do not constitute such continuous possession as will ripen into title by adverse possession, though extending over the statutory period.” Id.
- Hostile – “The term `hostile’ as employed in the law of adverse possession is a term of art and does not imply ill will. Nor is the claimant required to make express declarations of adverse intent during the prescriptive period. Adverse or hostile use is use inconsistent with the right of the owner, without permission asked or given, use such as would entitle the owner to a cause of action against the intruder.” Mumrow v Riddle, 67 Mich App 693, 698; 242 NW2d 489 (1976). In Bachus v West Traverse Twp., 107 Mich App 743; 310 NW2d 1 (1981), the Michigan Court of Appeals reversed a trial court’s determination that a township acquired land from private plaintiffs by adverse possession. The deciding factor in this case against the township on the element of hostility was the continuous assessment of taxes against the owners every year, which “acts as an emphatic recognition by the assessing governmental unit of private ownership.” It is also a well-recognized rule that possession of property under a mistake as to the boundary is not hostile and does not ripen into title. Ennis v Stanley, 346 Mich 296, 305; 78 NW2d 114 (1956).
- Under Cover Of Claim Of Right – “Claim of title or claim of right is essential to adverse possession, but it is not necessary that an adverse claimant should believe in his title, or that he should have any title. He may have no shadow of title and be fully aware of that fact, but he must claim title. He may go into possession without any claim of title, but his possession does not become adverse until he asserts one; and he may assert it by openly exercising acts of ownership, with the intention of holding the property as his own to the exclusion of all others. ‘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. It is not necessary, however, 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. That his acts and conduct clearly indicate a claim of ownership is enough.” Walker v Bowen, 333 Mich 13; 52 NW2d 574 (1952).
“The 15-year period begins when the rightful owner has been disseised of the land.” Canjar v Cole, 283 Mich App 723, 731; 770 NW2d 449 (2009). “Disseisin occurs [for purposes of an adverse possession claim,] when the true owner is deprived of possession or displaced by someone exercising the powers and privileges of ownership.” Kipka v Fountain, 198 Mich App 435, 439; 499 NW2d 363 (1993). The key to adverse possession is that the use of the property of the claimant must be totally contrary to the ownership interests of the true titleholder.
Successive periods of adverse possession by different persons may be tacked together to meet the statutory 15-year requirement ONLY if there is “privity of estate” between the adversing possessing grantor and the grantee. Siegel v Estate of Renkiewicz, 373 Mich 421; 129 NW2d 876 (1964). Privity of estate means that the rights and duties that run with the land concerning the original party are now devolved upon the successor (e.g. via transfer of deed with covenants). If enough successive owners have preserved the adverse possession claim over 15 years, then the current owner can assert the claim.
Adverse possession is extremely difficult to prevail on. “Under Michigan law, the presumptions are in favor of the record owners. One who alleges adverse possession bears a heavy burden to upset a title of record which is supported by consideration. Occasional trespass, concurrent possession with the owner, claim of title not communicated actually or constructively to the owner, peaceful occupation, possession with acquiescence or permission of the owner will not support adverse possession.” Rozmarek v Plamondon, 419 Mich 287, 294; 351 NW2d 558 (1984).
A claimant of property through adverse possession cannot simply acquire title by filing a piece of paper at the county register of deeds. The claimant must file a suit for adverse possession in circuit court and obtain a declaratory judgment vesting title. If all of the elements of adverse possession are not met, the true owner could defeat the entire lawsuit on summary disposition before the claimant gets his “day in court”. Whether you are thinking about initiating an adverse possession claim or needing to defend against one, you will need a skilled lawyer in your corner to properly advise you. You only get one opportunity to properly handle your lawsuit.
If you have any questions about property law or need legal representation, then do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC for assistance today.