As land use attorneys, we receive calls from property owners who want to know about “adverse possession.” Usually, the conversation proceeds along the lines of “can my neighbor really just take my property?” Sometimes the question is “I’ve used this land for 30 years; doesn’t that give me adverse possession?” While most people are on the right track in their understanding, proving an adverse possession case is far from simple.
Adverse possession has its roots in English common law. The idea was to favor the productive use of land when possible. It was also intended to encourage landowners to properly care for and watch their land. The concept survives to the modern day and its use (or attempted use) is more common than one might think.
In order to bring a successful claim for adverse possession, the plaintiff must hold continuous, uninterrupted possession for 15 years by actual, visual, open, notorious, exclusive, and hostile possession under a claim of right. Permissive entry and use does not qualify as adverse possession. For example, you cannot establish adverse possession when you have a valid lease on a property.
Most of the elements are self-explanatory. Actual possession means that the person must be physically in possession of the disputed land. Actual possession can be shown by cutting grass or timber, digging ditches, paying general and special taxes, or building fences. Curtis v Campbell, 54 Mich 340, 20 NW 69 (1884); Davids v Davis, 179 Mich App 72, 445 NW2d 460 (1989). Open and notorious possession means that the possession must be in plain sight and not in secret.
When discussing the “continuous and uninterrupted” elements, it is important to note that successive periods of adverse possession by different persons may be tacked together to meet the 15-year requirement. But this is only if there is “privity of estate” between the current and prior owners.
The element of “hostility” is often a sticking point in adverse possession cases. What state of mind is sufficient to meet this requirement? Typically, hostile use is that which is “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.”
A recent case in the Michigan Court of Appeals discussed the “hostility” element. In Houston v Mint Group, LLC, the court considered whether an adverse possession plaintiff had proven hostility. The only evidence the plaintiff submitted to prove hostility was an affidavit and a claim of “maintaining a garden” on the disputed land. The court affirmed in favor of the plaintiff. Notably, the court stated: the fact that the plaintiff maintained the disputed strip of land for 33 years constituted evidence that they intended to hold to the visible, recognizable retaining wall as the boundary. In other words, plaintiff needed to show that she intended to maintain a visible, recognizable boundary.
So to answer our questions from the beginning, yes, someone can “take” your property. And no, using another’s property for a number of years does not necessarily mean you’ve acquired title by adverse possession. The best way to win an adverse possession case is to assemble the best evidence before filing suit. Further, the nuanced nature of the law means you should hire an attorney who specializes in property and land use law.
The attorneys at Dalton & Tomich, PLC have extensive experience in property and land use law. If you feel you need to bring or defend against an adverse possession case, please do not hesitate to contact us. We would be happy to speak with you.