Adverse Possession in Real Property Boundary Disputes

Believe it or not, a person can become the rightful owner of a piece of real property even if he does not have legal title to the land. It happens more often than you think, especially in boundary disputes between neighbors due to a legal doctrine called “adverse possession.”

Adverse possession allows someone to become the legal owner of property she has occupied for a certain period – 15 years in Michigan – even if she is a trespasser and doesn’t hold title to the property.

The doctrine of adverse possession is controlled by state law. In Michigan, there is no one statute that sets forth the requirements for an adverse possession claim; instead, the law has been determined by the courts, and like most other states, adverse possession in Michigan is triggered by the nature and length of time the trespasser possesses the land.

Elements of an Adverse Possession Claim

A person claiming adverse possession in Michigan must show that, for at least 15 years, possession of the land was:

• Hostile;
• Actual;
• Visible;
• Open;
• Notorious;
• Exclusive;
• Continuous; and
• Uninterrupted.

Hostile does not mean unfriendly or antagonistic. Rather, it means the use of the land must be inconsistent with the rights of the true property owner and without the owner’s permission. Using land with an intent to leave when the real owner claims it (or demands it) does not satisfy the hostile requirement for adverse possession.

The use of the property must also be visible, open, and notorious. This means that the true owner must be reasonably aware of the adverse possessor’s presence and use of the land. If the property is vacant, the adverse possessor must act in a way that gives the owner actual notice. In most cases, sporadic use of a piece of land does not make the use visible, open, and notorious to the owner. Because each piece of property is different, however, whether the use is visible, open, and notorious will often depend on the characteristics of the land itself.

In addition, the use of the property must be exclusive, continuous, and uninterrupted during the required 15-year period. Occasional entry onto the land or intermittent use of the land will not support an adverse possession claim, and again, a property’s characteristics will help determine whether possession is exclusive, continuous, and uninterrupted. In the end, the use must be viewed by the property owner as exclusive.

Adverse possession also involves two other important concepts – tacking and privity. These come into play when the possessor is not the same person during the 15-year period.

Tacking is when the possessor adds the use of a previous property owner to meet the 15-year requirement. Privity is established either by receiving a deed conveying ownership of the land or by verbal communications at the time of the conveyance.

For example, let’s say you purchase a piece of land near a lake from someone who lived on the property for 10 years. Two years later, your neighbor advises you the stairs leading to the dock, which were installed more than 20 years ago, are on his property. To satisfy the 15 years for an adverse possession claim, you will need to “tack on” to the previous owner’s use of the stairs. Privity with the previous owner would not be a concern because you have the deed. In this instance, the adverse possession claim will likely succeed, especially if the closing documents show the stairs were included in the purchase.

Protect Your Property Interests

Adverse possession frequently arises in boundary disputes between neighbors. In Michigan, many adverse possession claims involve strips of land between adjacent properties (usually along a fence line) or the use of a beach area or waterfront.

In a boundary dispute, the situation is particularly problematic if the property lines have been drawn incorrectly. If the property demarcation is inaccurate, the land may have been used by a neighbor for the required 15 years for an adverse possession claim. The neighbor could become the legal owner of the property – unless the title holder takes action ahead of time to protect his or her interests.

Asserting or defending an adverse possession claim can be complicated. If you have questions about your real property rights, please contact us today to discuss your situation and possible remedies.