I won't dispute what your attorney told you.
In fact, in this case, it appears to me that your attorney is speaking truth.
Why do I think so?
I can't say for sure, but it occurs to me that "adverse possession" might be in play.
By
Editors of Nolo
If you're a property owner in Michigan, you likely have two or three neighbors whose land borders yours. Surprising as it might seem, those neighbors might be able to gain legal title to pieces of your property under a legal concept called "adverse possession." And while potentially less likely, an unknown trespasser could also squat on your land and develop a "rightful" claim to legal ownership.
To make sure that all your land remains yours, you might wish to familiarize yourself with Michigan's laws on adverse possession. There might 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 and keep.
Adverse possession is an age-old legal concept from 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 to the land is the presumed owner until the adverse possessor can meet that burden. In other words, it is the trespasser's job to prove that a Michigan judge should hand over title to and ownership of the piece of land.
As in most states, adverse possession in Michigan is established from the nature of a trespasser's possession and the length of time they possessed the land. A trespasser's possession must be:
- actual (exercising control over the property)
- visible
- open and notorious (using the property as the real owner would, without hiding the occupancy)
- hostile (against the right of the true owner and without permission)
- exclusive (in the possession of the trespasser alone)
- continuous and uninterrupted for the statutory period (which is 15 years in Michigan, under Mich. Comp. Laws Ann. § 600.5801(4)), and
- under cover of claim of right.
(See, for example,
Connelly v. Buckingham, 136 Mich.App. 462, 467–468, 357 N.W.2d 70 (1984).)
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 he believes to be on his land (based on some faulty plat maps) but 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 potentially 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 so long.
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.
How a trespasser or encroacher can eventually become a land owner in Michigan.
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Michigan recognizes adverse possession, a legal doctrine allowing someone to acquire ownership of real property they've occupied for a specific period, even without a formal title.
The Statute: MCL 600.5801
The relevant statute governing adverse possession is MCL 600.5801
[MCL 600.5801], titled "Limitations of actions – real property." It establishes time limits for filing legal actions regarding land ownership.
Subsection (4) is crucial, stating a 15-year limitation period "in all other cases under this section." This implies that to gain title through adverse possession, one must continuously possess the land for fifteen years.
600.5801 Limitation on actions; time periods; defendant claiming title under deed, court-ordered sale, tax deed, or will; other cases.
Sec. 5801.
No person may bring or maintain any action for the recovery or possession of any lands or make any entry upon any lands unless, after the claim or right to make the entry first accrued to himself or to someone through whom he claims, he commences the action or makes the entry within the periods of time prescribed by this section.
(1) When the defendant claims title to the land in question by or through some deed made upon the sale of the premises by an executor, administrator, guardian, or testamentary trustee; or by a sheriff or other proper ministerial officer under the order, judgment, process, or decree of a court or legal tribunal of competent jurisdiction within this state, or by a sheriff upon a mortgage foreclosure sale the period of limitation is 5 years.
(2) When the defendant claims title under some deed made by an officer of this state or of the United States who is authorized to make deeds upon the sale of lands for taxes assessed and levied within this state the period of limitation is 10 years.
(3) When the defendant claims title through a devise in any will, the period of limitation is 15 years after the probate of the will in this state.
(4) In all other cases under this section, the period of limitation is 15 years.
Elements of Adverse Possession
To successfully claim adverse possession in Michigan, the claimant (squatter) must demonstrate they possessed the property in a way that meets the following criteria:
- Actual Possession: This implies actively utilizing the land and regarding it as one's possession. Infrequent or irregular use would not meet the criteria.
- Visible and Open: The possession should be evident to anyone observing the property. Fences, landscaping, or structures built demonstrate this.
- Notorious: The possession should be known or readily discoverable by the rightful owner. This doesn't require the owner's actual knowledge, but the use should be such that the owner could have discovered it with reasonable diligence.
- Exclusive: The possession should prevent others, including the rightful owner, from using the land.
- Continuous and Uninterrupted: Possession must be ongoing for the entire 15-year period. Gaps or breaks in possession could weaken the claim.
- Hostile: This doesn't imply animosity towards the true owner. It simply means the possession is adverse to the owner's rights, suggesting a claim of ownership independent of the owner's permission.
We'll Take That From You.
MCL 600.5821 addresses limitations for government entities
[MCL 600.5821]. Government entities like municipalities and road commissions are generally
not subject to adverse possession claims.
Additionally, the "hostile" element can be tricky. Permission from the true owner, even verbal, can disrupt the claim.
Consulting an attorney is highly recommended to assess the specific facts of a potential adverse possession case.
Potential Issues
Successfully establishing adverse possession allows the claimant to gain legal title to the property.
However, there are potential drawbacks. The process can be lengthy and require significant evidence. Additionally, if the true owner contests the claim, litigation can be costly.
Michigan recognizes adverse possession, a legal doctrine allowing someone to leech ownership of your property. There are rules though.
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