For most Americans, their home and its environs are their most valuable assets. If you’re a property owner in Michigan, you likely have two or three neighbors whose land borders yours. While it may seem surprising, those neighbors might be able to gain legal title to pieces of your property under a legal concept called adverse possession. And while it might be less likely, an unknown trespasser can also squat on your land and develop a "rightful" claim to legal ownership.
To make sure that your land remains yours and that a neighbor can’t take over a portion of it, you might wish to familiarize yourself with Michigan’s laws on adverse possession. There may even arise an occasion when you yourself decide to assert an adverse possession claim, over land that you have been using for a long time, and therefore feel you’ve developed a right to own.
Adverse possession is a legal concept that allows a trespasser – sometimes a stranger, but more likely a neighbor – to gain legal title over the land of another. This concept can be traced back to early Britain. It has continued into modern times as a way to achieve a fair result when one owner has neglected or forgotten about a piece of land while another has been using or caring for it for so long that to make that person leave would be unfair, or create hardship.
Adverse possession in Michigan is regulated by state statute as well as by the courts. They make sure that a trespasser doesn't have too easy a time of claiming another's property by placing the burden of proof on the trespasser. The legal holder of title has the presumption of ownership until the adverse possessor can meet that burden. In other words, it is the trespasser’s job to prove that a Michigan judge should give him or her ownership over the piece of land.
There is no single statute in Michigan that spells out the elements that a trespasser must establish to prove adverse possession. Rather, the state's courts have established a variety of such factors over many decades of hearing and deciding upon individual lawsuits. As in most states, adverse possession in Michigan is established from the nature of a trespasser’s possession and the length of time he or she has possessed the land. A trespasser’s possession must be:
1) hostile (against the right of the true owner and without permission)
2) actual (exercising control over the property)
3) exclusive (in the possession of the trespasser alone)
4) open and notorious (using the property as the real owner would, without hiding his or her occupancy), and
5) continuous for the statutory period (which is 15 years in Michigan under Mich. Comp. Laws Ann. § 600.5801(4)).
For example, imagine that Peter and Paul live next to one another in Ann Arbor. There is no dividing fence or boundary between their yards. Peter builds a playhouse for his children that is actually on Paul’s side of the property, covering about eight square feet of earth. Paul doesn’t say anything. Peter and his children use the playhouse as if it were on their own land. They do this for 15 years. Under the rubric described above, Peter can probably establish that he “owns” the land on which he was encroaching. Paul could have stopped Peter by asked, over those 15 years, that he remove the playhouse, or sign a rental agreement to indicate that the use was by consent rather than a hostile act. But Michigan courts won’t let him suddenly eject Peter after having sat on his rights for well over a decade.
The doctrine of adverse possession protects one who has honestly entered and held possession in the belief that the land is his or her own, as well as one who knowingly appropriates the land of another with the precise idea of acquiring title. In other words, Michigan law contains no requirement that the trespasser's entry and continued possession of the property be done with knowing or intentional hostility.
Rather, any entry and possession for the required 15 years that is exclusive, continuous, hostile, actual, and open – even if under a mistaken claim of title – is sufficient to support a claim of title by adverse possession. In our example above, it doesn’t matter whether Peter built the playhouse knowing that he was on Paul’s land, or whether he built it mistakenly thinking it was on his own land. His intent has no bearing on his eventual claim for title under adverse possession.
In some states, the payment of property taxes by a person claiming adverse possession can be used to establish legal title. However, there is no such statutory requirement in Michigan. Paying taxes is not, of itself, sufficient to constitute adverse possession. However, uninterrupted payment of taxes on a particular property for more than 15 successive years is powerful evidence in support of a claim of adverse possession.
What should you do if you spot a trespasser or a neighbor encroaching on your land and you don't want to give that person express permission to do so? Your first step, of course, should be to speak up. Ask the person to remove any structures or plants and stop using your land.
More often than not, if it’s an innocent mistake, the trespasser will comply. If that doesn't happen, your next step should be to consult a lawyer. You can bring what's called an action to "quiet title" – a legal method for determining title to land. You would be asking a Michigan state court judge to issue an order declaring that you, and not the trespasser, are the true owner of the land in question. Such an order is particularly helpful if you are seeking to sell your property, and need to reassure potential buyers that they'll be getting what they pay for.
Land held by Michigan’s state and municipal government entities are generally immune from adverse possession actions. So, if you live next to an unused state park in Grand Rapids, you won’t be able to expand your backyard merely by mowing the lawn or building a shed and waiting 15 years. The state will still “own” every inch of that property.