Michigan Adverse Possession Law; Simple Possession is Not Enough

One of the common issues which comes up with clients of Outside Legal Counsel is the claim of adverse possession under Michigan law.What is Adverse Possession?
Many states have a rule of equity (i.e. not from a statute) which will allow a trespasser, who has been in possession of property for a set amount of time, to become the title owner and “displace” the actual title owner.

Contrary to popular belief, it is not an “easy win” in court ; but it is certainly possible and defendable (depending your side of the legal fight)in the right set of circumstances. A lawyer who is well-versed in property law is critical. A general practice, hometown attorney generally lacks enough specialized knowledge to properly prosecute or defend this action at law.

What must be proved?
In Michigan, there are 7 elements (or legal items) which a claimant (i.e. a person or company) must prove to take title to property by adverse possession. Michigan law, as dictated by the Supreme Court in Beach v Twp of Lima, provides:

“To establish adverse possession, the party claiming it must show clear and cogent proof of possession that is 1.) actual, 2.) visible, 3.) open, 4.) notorious, 5.) exclusive, 6.) continuous and uninterrupted for the statutory period of 15 years,  7.) under cover of claim of right.”

The standard “clear and cogent” is the civil law equivalent to the “beyond a reasonable doubt” standard–the same level of proof the government must present to a jury to put someone in prison for dozens of years. It is that serious. The most difficult elements are: hostility and exclusivity.

To establish “hostile” use, the use must be:

“inconsistent with the right of the owner, without permission asked or given, and which use would entitle the owner to a cause of action against the intruder.”

To gain title, you must be the only one exclusively using the property. (Do note that if the property is jointly used, not all is lost: it might allow for a prescriptive easement claim instead).

Take the case of “Outlot 9” in the Hollywood by the Lake subdivision in Howard v Glenn Haven Shores Ass’n (COA No. 325812), which abuts Lake Michigan. A couple of lot owners brought suit claiming they had “owned, maintained, and used” the beach on Outlot 9 in an “open, notorious, exclusive, hostile, under a claim of right, in a continuous and uninterrupted manner for a period of 15 years.”

The Court rejected the claim. Why? One of the parties conceded that others used the beach throughout the years. The owner of Outlot 9 (a homeowners association) moved to dismiss the claim because, as you can guess, there lacks exclusive use of the beach for a period of 15 continuous years when numerous other association members also used the beach.

The trial court agreed and the Court of Appeals affirmed, concluding there was nothing in the evidence to clearly establish that the claimants excluded others from enjoying access to and through Outlot 9.

Don’t Go It Alone
Moral of the story: if you need to assert an adverse possession claim, a property law attorney is critically necessary; on the other hand, if you are defending against a claim of adverse possession, a property law attorney is a must.  Michigan adverse possession lawsuit is a tall legal order to fulfill (but it is not impossible to properly assert or defend).

Author: Philip Ellison

Philip L. Ellison, MBA, JD, Esq is an attorney, business counselor, and civil litigator with Outside Legal Counsel PLC. He represents riparians, backlotters, and others protecting water access on Michigan's recreational lakes. Visit his online profile at www.olcplc.com.