It has been said that good fences make good neighbors. This has never been more true when homeowners start encroaching on your commercial property, possibly gaining some degree of ownership rights. This article addresses the problem and offers several solutions.
The Problem.
Commercial properties are often carefully scrutinized by owners and purchasers for problems which can be ferreted out by looking at legal documents in an office. Rarely are problems searched for by inching over every part of the property line to see not only where they are, but who has been doing what on the property and for how long.
The most common scenario is as follows: There is a large, undeveloped parcel of land which borders a residential home. The homeowner has lived there for years, and has always enjoyed having his own private "woods" in his backyard. For years, the homeowner has used the undeveloped lot to hunt and hike. He has also taken to mowing the lawn far beyond his property line, and also uses it for parking extra vehicles or tending a garden. The ownership of the undeveloped lot and the home may change over these years, but nothing out of the ordinary appears on the deed history of either lot. Everyone is happy until the commercial lot begins development. The homeowner does not like losing his private woods and does not like the idea of big new homes going up all around him. He now consults a lawyer to see what he can do. The homeowner’s lawyer tells him he is able to only stop construction on certain portions of the commercial lot, but he may now own those portions of the lot under the legal doctrine of adverse possession.
What Is Adverse Possession?
In Michigan, a person may acquire ownership of real property by adverse possession. In order to secure title by adverse possession, the claimant’s possession must be actual, visible, open, notorious, exclusive, continuous, uninterrupted for the statutory period (fifteen consecutive years) and under cover of claim of right. Caywood v. Department of Natural Resources, 71 Mich App 322 (1976).
Whether adverse possession is established depends upon the facts of each case and the character of the premises. Burns v. Foster, 348 Mich 8 (1957). Acts of ownership which openly and publicly indicate an assumed control or use consistent with the character of the premises are sufficient. Monroe v. Rawlings, 331 Mich 49 (1951).
Successful claims for adverse possession have been based on simple, everyday activities such as mowing the lawn, putting up a fence, or otherwise publicly acting like the property was owned by the claimant. Before the law will allow such a substitution of ownership, the possession must have been so notorious as to raise a rational presumption of knowledge by the true owner. Doctor v. Turner, 251 Mich 175 (1930). In other words, the possession must be such "that if the true owner remains in ignorance, it is his own fault." Ennis v. Stanley, 346 Mich 296 (1956).
How To Attack A Claim Of Adverse Possession.
The doctrine of adverse possession is strictly construed against the person making the claim for adverse possession. The party alleging title by adverse possession must prove the same by clear and positive proof. Rose v. Fuller, 21 Mich App 172 (1970). The claimant must establish each and every element (i.e., possession must be actual, visible, open, notorious, exclusive, continuous, uninterrupted for the statutory period-fifteen-years-and under cover of claim of right). The lack of any one of the elements will defeat the claim. Traditionally, the two weakest elements of the claim are the fifteen-year time period and the requirement of hostile or adverse possession.
You must act fast. If the claimant has not owned the neighboring property for fifteen years, you must immediately track down all of the prior owners of the property and try to defeat the elements of the claim. If he can establish fifteen years on his own, then you must immediately talk to all of his neighbors (and get historical aerial photographs if available) to show that he cannot establish the elements to make his claim.
"Tacking" On Fifteen Years.
Fifteen years can be a long time. Michigan law allows the current claimant to "tack" on the periods of "adverse possession" of prior adverse possessors to establish the consecutive fifteen-year period. However, "it has long been the rule in Michigan that the statutory period of possession or use necessary for obtaining title by adverse possession is not fulfilled by tacking successive periods of possession or use enjoyed by different persons in the absence of privity between those persons established by inclusion by reference to the claimed property in the instruments of conveyance or by parol references at the time of conveyances." Siegel v. Renkiewicz Estate, 373 Mich 421 (1964). In other words, the prior adverse possessor must have specifically mentioned in the deed or said something during the sale to the effect of "I am also giving you my unripened adverse possession claim to the neighboring lot." Arduino v. City of Detroit, 249 Mich 382 (1930). It is highly unlikely that any such statement was made in the deed or anywhere else.
Therefore, if an adverse possession claim is made, it is important that you immediately track down any prior owners over the last fifteen years to determine if they made any such representations.
Hostility: Assertion Of Possession With Intent To Exclude
The claim of possession does not become adverse until it is asserted. The belief or knowledge of the adverse claimant is not as important as his intentions. His intention is the controlling consideration, and it is not the knowledge or belief that another has a superior title, but the recognition of that title that destroys the adverse character of possession. 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. Connelly v. Buckingham, 136 Mich App 462 (1984).
Adverse or hostile use is use that is inconsistent with the rights of the owner, without permission asked or given, and such as would entitle the owner to a cause of action against the intruder.
Once again, any prior owners may become pivotal. Even if they mowed the lawn over the property line, they will likely agree that they did not "exercise acts of ownership with the intention of holding the property as their own to the exclusion of all others."
Similarly, if the claimant asked for or received permission to use the property, then his claim was not hostile nor adverse. Possession or use which is permissive is not adverse possession. Warner v. Noble, 286 Mich 654 (1938).
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Whether you own the property or are interested in buying it, if you foresee a problem with a potential adverse possession claim, strike first. Do a title search on the potential claimant’s lot. If he has owned it for less than fifteen years, get a sworn statement from the prior owners which would defeat the elements of a potential adverse possession claim. Similarly, you can give permission (on a temporary basis) to use the lot, which would defeat an adverse possession claim. If you do give permission, be very careful how that permission is granted – you do not want to give an easement on your property either. |
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
