Many Traverse City area landowners are surprised to learn that under certain situations, a neighbor can occupy your land and gain legal ownership of it. The trespasser may acquire a few feet of property or whole acres by doing this. If someone is using your property, even a small strip on the edge, you should be aware of the risk!

Even if the neighbor can’t claim your property, they may be able to gain the legal right to use part of your property; this is called a prescriptive easement.

The legal doctrine that allows trespassers to become owners is called “adverse possession.” If the people involved can’t work something out, the property owner may sue the trespasser, or the trespasser may bring a lawsuit to quiet title (request for the court to settle who owns what).

REQUIREMENTS FOR OBTAINING LAND BY ADVERSE POSSESSION

A trespasser is entitled to legal ownership of Traverse City area property if his occupation of the property is hostile, actual, open and notorious, exclusive and continuous for a period of years (15 in Michigan) set by state statute. This does not apply to bank or government owned property (We explain each of these terms below). Bank owned property time limits are reset from point of sale. Government owned properties can never fall under adverse possession. Some states, such as California, also require the trespasser to have paid the local property taxes on the land.(1) The time required, which varies from state to state, is usually twenty years. It can be as short as five years when the trespasser pays the property taxes.

In Traverse City Michigan, the elements of adverse possession are: ACTUAL, OPEN, NOTORIOUS, EXCLUSIVE, VISIBLE, AND UNINTERRUPTED POSSESSION of the property that was hostile to the owner and under cover of a claim of right for a fifteen-year period. Rozmarek v Plamondon, 419 Mich 287, 295; 351 NW2d 558 (1984).

It is possible to gain a prescriptive easement, also, the elements of which are the same except for exclusivity (it’s not necessary for the use by the person claiming the easement to have been exclusive). Plymouth Canton Community Crier, Inc v Prose, 242 Mich App 676, 679; 619 NW2d 725 (2000).

It is also possible to “tack” periods of successive adverse possession by successive owners (add the number of years together) in order to satisfy the statutory period, although it can be tricky to prove that all elements were satisfied by a former owner (or owners).

HOSTILE CLAIM

The word “hostile” does not mean that the trespasser barricades himself on the land with a shotgun. Most courts follow one of two legal definitions of hostile. One is called the “Maine rule” which applies to Michigan and requires that the person be aware that he is trespassing. The other rule (followed by most states) is the “Connecticut rule,” defines hostile simply as occupation of the land and doesn’t necessarily have to know that the land belongs to someone else.

ACTUAL, OPEN AND NOTORIOUS POSSESSION

The trespasser must actually be in POSSESSION of the Traverse City area property and treat it as if he were an owner. This means there must be a physical presence on the land. It’s not enough for someone just to make a claim, orally or in writing, of ownership.

The words “OPEN AND NOTORIOUS” simply mean that it must be obvious to anyone, including an owner who investigates, that a trespasser is on the land. Actual (physical) possession is usually open and notorious. A person pruning the rose garden that she planted on a strip of the neighbor’s back yard. Same goes for the neighbor who just put up a fence up slightly on your property is obvious.

EXCLUSIVE and continuous POSSESSION

The trespasser must possess the land exclusively and without interruption for the statutory time period. You can find how many years are required in your state from the chart below.

For continuous possession, the trespasser can’t give up the use of the property in such a way that he no longer acts as an owner, and then return to it and count the time that it was abandoned. It has to be maintained continuously.

The person trespassing must be the only one occupying the property – he can’t share possession with strangers or the owner. (By contrast, a trespasser can gain the right to use a certain part of another’s property, a prescriptive easement, even if possession or use is shared with others.

If one person uses the property for a while and leaves, and another shows up for a while, the times can’t be combined – the possession hasn’t been exclusive by one person.

If, however, the trespasser actually sells or gives the property to someone else, the recipient becomes the adverse possessor and the years that the first trespasser spent occupying the land count for the new one’s claim. This is called “tacking.” When one trespasser passes the land to the next, then that person’s claim is tacked on to the previous one.

WHAT CAN THE OWNER DO?

You can loose your property if you don’t keep an eye on it! Nobody should allow the boundaries to be redrawn by inattention and inaction — in a city, a loss of even twenty feet could be devastating to a property investment.

If you are concerned that someone has a possible claim to your land, check the local property tax records to see if anyone has made tax payments for the property. Paying taxes always bolsters an adverse possession claim, even when it is not required for a successful claim.

There are several steps an owner can take to prevent a trespasser from gaining a legal claim to the ownership.

GIVE WRITTEN PERMISSION

One effective way to thwart a possible claim is by giving permission to use your land. If Norma is out planting a garden in your backyard, treating it as her own land, step over and say “Hello, you are on my property by a few feet, but that’s okay.” You don’t have to throw her off your property; simply claim it. Then put the permission in writing and obtain an acknowledgment from Norma. The chain has been broken. She can tend that garden for forty years and still never acquire a legal claim to your property if she has your permission.

An example of written permission is shown below.

Agreement Granting Permission to Use Property

I, Homeowner, owner of the property located at 123 Fun Drive, Clearwater, FL, give my permission to Trespasser to plant and tend a garden located on a ten-foot strip of my property bordering the north of the property line. I reserve the right to revoke this permission at any time.

___________________________ __________
Homeowner date

I, Trespasser, acknowledge that my use of this strip of and belonging to Homeowner is by permission only, and that the permission may be revoked at any time.

___________________________ __________
Trespasser date

This type of agreement can be used to grant permission for parking, using a shortcut across property or even growing crops. It not only can defeat adverse possession claims, but also a claim to an easement across your property. When you use such a written permission, be absolutely sure that the portion of your land being used is described in enough detail so that it is easily identifiable.

If your neighbor is upset or insulted by the idea of a written permission, show them this webpage. Explain that while you have no objection to her use of your land, you must protect your interest for later years.

If the neighbor refuses to acknowledge the permissive use, you are then on the alert of a possible claim that is adverse to your interest, and you should take steps to prevent further use of your property.

OFFER TO RENT THE PROPERTY TO THE TRESPASSER

If someone wants to remain on your property, you can always offer to rent it to them. In fact, the presentation of a rental agreement can be very effective in getting some trespassers to immediately leave on their own.

CALL THE POLICE

If someone refuses to acknowledge a permission, and ignores your requests to stay off your property, you can call the police or notify the sheriff and have the person removed or arrested.

When the trespasser is a next-door neighbor, you may be understandably reluctant to bring in the police. But sometimes it is necessary to protect your property and will start a record that can save your property!

HIRE A LAWYER

Any time it appears that a trespasser may be entertaining the idea of claiming your property under an adverse possession theory, see a lawyer. You may need to file a lawsuit to eject the trespasser from the land. Or you may want to ask a court to order a structure removed or a person to stay away. You must act before the trespasser has been on your land long enough, under your state’s law, to make a successful adverse possession claim.

EXAMPLE
Jones and Smith share a boundary line of record. Smith knowing it is not his property occupies part of Jones’ property for a tennis court.

This type of boundary line question is really one of adverse possession. These cases are determined under the rubric of has the possessor established such possession to be actual, visible, open, notorious, hostile, continuous and adverse to all. Here there is no assumption that the parties agreed upon the placement of that part of the tennis court across the boundary line. There is no mistake as to where the line is. There is no actual or implied permission or acquiescence. Jones just takes land, fences it, covers it with tarvia and occupies it as a tennis court. The required number of years go by and Smith never objects or follows through on any objections that he may have. Jones is now the owner of the land or at least cannot be evicted. Numerous Michigan cases have dealt with such issues.

Michigan still recognizes “squatters rights”. That takes precedence over a survey. And the title company told us they will not get involved and it is in the fine print that they NEVER cover boundary disputes. Believe me, we have learned a lot in the last year and have spent a ton of money. You will likely have no problem.