Adverse Possession in Michigan
Believe it or not, adverse possession awards property to someone who is not a title owner but has repeatedly used the property as if they own it. After a period of time, fifteen years in Michigan, the user is determined to be the owner of the property. For context, the typical adverse possession case involves a fence or accessory building on another's property, or use of a beach or lawn area--completely "stealing" someone's entire lot is rare, if it happens at all.
The first step is disseisen--depriving the true owner of possession or displacing the true owner of the powers and privileges of ownership. The time period, defined by Michigan statute 600.5801, is fifteen years. This is actually a statute of limitation, meaning that if an owner has suffered continual disseisen, they must file a lawsuit to exclude the non-owner within fifteen years. If not, they lose the right to exclude the non-owner.
The following are elements of adverse possession:
Hostility--this is the "adverse" part of adverse possession. The term here does not mean ill will or intent, or even a statement of adverse intent. What is required is some sort of use inconsistent with the rights of the true owner of the property, without permission. It is not enough if the user recognizes that their right to use the land is inferior to the owner--entering or using the land with the intent to leave when the real owner claims it or demands rent is not "hostile" for these purposes. Also, probably the most-litigated issue, and most fatal to the claim of adverse possession, is permission. You cannot meet the requirement of hostility if you are using the land with permission (sometimes called a license, especially if the permission is written). If your neighbor on Torch Lake has told you that you can use their beach whenever you want, your use is permissive and not hostile. For this reason we recommend that landowners enter into written licenses when they are letting others routinely use their property, to avoid doubt.
The hostile use must be "open, visible, and notorious." What this means is the use must be such that it puts the property owner on notice. In the case of vacant lands, the user must give word or act to the owner that gives notice. Periodic recreational use, most of the time, does not rise to the level of open, visible, and notorious. Because each parcel of property is unique, determining whether the use is open, visible, and notorious will vary depending on the characteristics of the property.
Continuous and Exclusive. The possession of the land cannot just be intermittent, it must be continuous throughout the fifteen years. Occasional or periodic entry onto the land will not constitute adverse possession. Note, however, that continual possession is not the same as continual occupancy--as with the other factors, the characteristics of the property will determine whether the possession is continuous. Similar to putting the owner on notice with the open, notorious, and visible factors, the use must be, viewed by the true owner, exclusive. This means that the user is intending to exclude the true owner from his property.
Tacking and Privity. These concepts arise when the user is not the same throughout the fifteen year period. A user may tack her use to the use of previous owners of her land to achieve the fifteen year period. The user must show privity with the prior owners. This is done by either receiving a deed conveying ownership of the used area or by statements made at the time of the conveyance. An example may help here. Suppose you buy property on Grand Traverse Bay from a seller who has lived there for 12 years. After three years of living there your neighbor tells you that your steps to the beach (which were installed 15 years or more ago) are on his property. You don't have 15 years of possession unless you can tack onto the prior owner's usage of the steps. You will have privity with the prior owner, and a successful claim, if your sales documents show in a deed or survey that you were purchasing that area or if the seller (or their realtor) demonstrated that the steps were part of the purchased property. If those elements are met, you can claim the possession of the prior owner and likely have a valid claim of adverse possession.
A unique factor of adverse possession is that the plaintiff must meet a higher standard of proof. In most civil cases the plaintiff must show that a preponderance of evidence is in their favor. For adverse possession, the evidence must “clearly and cogently” be in their favor.
As you can see, asserting or defending against an adverse possession claim can be complicated and factually dependent. If you need assistance, please contact me.
PS: Use of someone else's property to gain access to your property (ingress and egress) is not adverse possession, but is a claim for a prescriptive easement, described in this post.
Thanks to my partner Robert Parker. Much of this text comes from a presentation he did for the Real Property Law Section of the State Bar of Michigan.