Adverse Possession Primer

Adverse Possession Primer

Some might argue that when it comes to property, “If you don’t use it, then you lose it.”

That’s not true, but at the same time, you should never ignore someone who uses your property openly and without permission.
Michigan courts have long held that an owner of real property may lose title to some or all of it if a number of fairly stringent criteria are met. These include actual, visible, open, notorious, exclusive, and continuous use, uninterrupted for 15 years, hostile, and under a cover or claim of right.

These criteria are collectively known as the elements of adverse possession.

To successfully lay claim to someone else’s land, you must meet all of the above-listed elements by “clear and cogent” or “clear and positive” proof. This is beyond the normal civil law standard of “preponderance of evidence.”

Moreover, courts are required to strictly construe all evidence of adverse possession; every presumption is in favor of the true owner. A review of each of the elements shows that acquiring title to another’s land is very difficult, but certainly not impossible.
Aaron’s neighbors could not adversely possess Aaron’s property unless they entered the land and actually possessed the land exclusively. Possession means that one has exercised a certain level of control over the property in an exclusive manner; separate of the true owner.   Occasional use or trespasses on the land will never qualify as meeting the actual possession element.

The words “open and notorious possession,” mean that an adverse claim of ownership must be evidenced by such conduct as is sufficient to put a person of ordinary prudence on notice of the fact that the land in question is held by the claimant as his or her own, including notice both to the record owner and to the public.   Thus, inconspicuous occupation of another’s land will not qualify as open and notorious possession.

To support a claim of adverse possession, the possession must be hostile.  The term “hostile,” as employed in the law of adverse possession, is a term of art and does not imply ill will; rather, hostile use is that which is inconsistent with the rights of the owner, without permission asked or given.   One may assert hostile possession by openly exercising acts of ownership with the intent of holding the property as his or her own to the exclusion of all others.

Last but not least, all of the elements above must have been continuous for each and every day during the entire 15 years required by the statute of limitations.  It is possible to meet the 15 year requirement by tacking (adding) one’s adverse possession to a successor so long as the successor has obtain the land in a lawful manner.

In conclusion, if you are going to own property, be vigilant when it comes to another’s use of your land.  How vigilant?  That is an excellent question for your attorney.  Just remember, while the adverse possession burden is high, Michigan courts will find in favor of an adverse possessor if all of the elements are present and have been met.


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