What is the Period for Adverse Possession in Michigan?

Full Question:

I have a neighbor who cleaned out the fence row between our fields 9 years ago. He then had it surveyed and without us knowing at the time put steel posts on our side of the line. Over the following 9 years he has moved over on our side a little more. So this year I had it surveyed and found out that he was on our side. He now states that he has the right to maintain 2 feet on our property. Does he, and is there anything we can do about it?
07/02/2009   |   Category: Real Property ยป Encroachment   |   State: Michigan   |   #17319

Answer:

Adjoining landowners can find themselves in disputes over fences, overhanging branches, water rights, subjacent and lateral support and party walls. A boundary is every separation, natural or artificial (man-made), which marks the confines or line of division of two contiguous estates. A river or other stream is a natural boundary, and in that case the center of the stream is the line.

Boundaries are frequently marked by partition fences, ditches, hedges, trees, etc. When such a fence is built by one of the owners of the land, on his own premises, it belongs to him exclusively; when built by both at joint expense, each is the owner of that part on his own land. When the boundary is a hedge and a single ditch, it is presumed to belong to the person on whose side the hedge is. But if there is a ditch on each side of the hedge, or no ditch at all, the hedge is presumed to be the common property of both proprietors. A tree growing in the boundary line is the joint property of both owners of the land.

Encroachments, whether by fence or by structure, generally become either a boundary line dispute (if the neighbors cannot reach agreement) or become the basis for a boundary line agreement (if the neighbors can reach an agreement on the location of a new, “adjusted,” common boundary-line.

As a general rule, an encroachment exists only when a fence or structure lies on both sides of the recorded boundary line for a period of time less than the period of the state’s statute of limitations for civil actions regarding real property.

You may wish to consult an experienced attorney to attempt to negotiate a boundary-line agreement with your neighbor. In doing so, you would at least attempt and at best would succeed in saving both you and your neighbor significant sums of money that otherwise might be expended on litigation.

A quiet title or trespass to try title action is the method of determining title to lands. In a quiet title action, it is possible to ask the court to issue an injunction to force another to do or refrain from doing an act. An injunction is an equitable remedy that the court may order when money damages will be inadequate to remedy the harm suffered.

In the case of an encroachment, a plaintiff may be awarded the fair value of the property. Typically, the court will determine value of property based upon expert evidence as to the value of comparable property in the location. In order to award punitive damages for an encroachment, courts have held that the plaintiff needs to prove the defendant acted with recklessness that shows a conscious disregard of property rights. Punitive damages are designed to deter conduct that was based on wrongful intent, usually requiring some proof of fraud, malice, oppression, or other wrongful and intentional motives.

The basis of a defense to encroachment is adverse possession. The doctrine of "adverse possession" is one of the most interesting in the field of real property law. Adverse possession is a means by which someone may acquire title to the land of another through certain acts over a defined period of time. Such acts must continue uninterrupted for the time period defined by state laws, which vary by state. The time period in Michigan is 15 years. To establish adverse possession the claimant must show by clear and cogent proof that possession is actual, visible, open, notorious, exclusive, hostile, under cover of claim or right, and continuous and uninterrupted for the statutory period of fifteen years.

Payment of taxes alone isn't sufficient to claim a property by adverse possession. In general, the acts of possession must be overt, hostile, exclusive, uninterrupted, and under a claim of right, etc., so as to give the owner or others claiming entitlement to possession notice and an opportunity to counter the adverse possession. Payment of real property taxes and making improvements (such as paving or fencing) for the statutory period, which varies by state, are evidence of adverse possession but cannot be used by a person with no claim to title other than possession. Certain public property is not subject to adverse possession. Some states require that the possession be "under color of title," or that the person must believe that he has the right to possess it and has some form of document or is relying on some fact that while not actually conveying title, appears to do so. In addition, many states require concurrent the payment of property taxes for a specified period of time, and a few states also require that improvements be made upon the land. Eventually, the possessor is required to file for title with the county recorder. The actual owner then has a limited amount of time in which to challenge the newcomer's title. Essentially, the owner's only argument is to claim some sort of disability; such as age, mental instability, or imprisonment. The owner is not required to do much in order to stop the possessor from acquiring title; merely sending the possessor a note granting permission to be there will usually suffice. Various rules exist regarding the continuousness of the possession and the ability to "tack" various periods of possession together in order to satisfy the time of possession requirement. A claimant is permitted to add his predecessors' periods of possession if he can establish privity of estate either by mention of the disputed lands in instruments of conveyance or orally at the time of transfer.

If a surveyor is negligent is surveying property, by failing to use the standard of care and skills typical in the profession, and that negligence causes harm to another, it is possible that the surveyor may be liable for all or part of a claim brought against the person harmed.

An easement may be created by agreement which grants a privilege of a specific and limited use of the land of another. A right of way is a form of an easement granted by the property owner that gives another the right to travel over and use the owner's land as long as it is not inconsistent with the owner's use and enjoyment of the land.

The following are MI statutes:
600.5801 Limitation on actions; time periods; defendant claiming title
under deed, court-ordered sale, tax deed, or will; other cases.

Sec. 5801. No person may bring or maintain any action for the recovery
or possession of any lands or make any entry upon any lands unless, after
the claim or right to make the entry first accrued to himself or to
someone through whom he claims, he commences the action or makes the
entry within the periods of time prescribed by this section.

(1) When the
defendant claims title to the land in question by or through some deed
made upon the sale of the premises by an executor, administrator,
guardian, or testamentary trustee; or by a sheriff or other proper
ministerial officer under the order, judgment, process, or decree of a
court or legal tribunal of competent jurisdiction within this state, or
by a sheriff upon a mortgage foreclosure sale the period of limitation is
5 years.

(2) When the defendant claims title under some deed made by an officer
of this state or of the United States who is authorized to make deeds
upon the sale of lands for taxes assessed and levied within this state the
period of limitation is 10 years.

(3) When the defendant claims title through a devise in any will,
the period of limitation is 15 years after the probate of the will
in this state.

(4) In all other cases under this section, the period of limitation is
15 years.

600.5851 Disabilities of infancy or insanity; tacking of successive
disabilities prohibited; year of grace; removing disability of infancy;
claim alleging medical malpractice accruing to person 8 years old or less
or 13 years old or less; disability of imprisonment; "release from
imprisonment" defined.

Sec. 5851.

(1) Except as otherwise provided in subsections (7) and
(8), if the person first entitled to make an entry or bring an action
under this act is under 18 years of age or insane at the time the claim
accrues, the person or those claiming under the person shall have 1 year
after the disability is removed through death or otherwise, to make the
entry or bring the action although the period of limitations has run.
This section does not lessen the time provided for in section 5852.

(2) The term insane as employed in this chapter means a condition of
mental derangement such as to prevent the sufferer from comprehending
rights he or she is otherwise bound to know and is not dependent on
whether or not the person has been judicially declared to be insane.

(3) To be considered a disability, the infancy or insanity must
exist at the time the claim accrues. If the disability comes into
existence after the claim has accrued, a court shall not recognize
the disability under this section for the purpose of modifying the
period of limitations.

(4) A person shall not tack successive disabilities. A court shall
recognize only those disabilities that exist at the time the claim
first accrues and that disable the person to whom the claim first
accrues for the purpose of modifying the period of limitations.

(5) A court shall recognize both of the disabilities of infancy or
insanity that disable the person to whom the claim first accrues at the
time the claim first accrues. A court shall count the year of grace
provided in this section from the termination of the last disability to
the person to whom the claim originally accrued that has continued from
the time the claim accrued, whether this disability terminates because of
the death of the person disabled or for some other reason.

(6) With respect to a claim accruing before the effective date of the
age of majority act of 1971, Act No. 79 of the Public Acts of 1971, being
sections 722.51 to 722.55 of the Michigan Compiled Laws, the disability
of infancy is removed as of the effective date of Act No. 79 of the
Public Acts of 1971, as to persons who were at least 18 years of age but
less than 21 years of age on January 1, 1972, and is removed as of the
eighteenth birthday of a person who was under 18 years of age on January
1, 1972.

(7) Except as otherwise provided in subsection (8), if, at the time a
claim alleging medical malpractice accrues to a person under section 5838a
the person has not reached his or her eighth birthday, a person
shall not bring an action based on the claim unless the action is
commenced on or before the person's tenth birthday or within the period
of limitations set forth in section 5838a, whichever is later. If, at the
time a claim alleging medical malpractice accrues to a person under
section 5838a, the person has reached his or her eighth birthday, he or
she is subject to the period of limitations set forth in section 5838a.

(8) If, at the time a claim alleging medical malpractice accrues to a
person under section 5838a, the person has not reached his or her
thirteenth birthday and if the claim involves an injury to the person's
reproductive system, a person shall not bring an action based on the
claim unless the action is commenced on or before the person's fifteenth
birthday or within the period of limitations set forth in section 5838a,
whichever is later. If, at the time a claim alleging medical malpractice
accrues to a person under section 5838a, the person has reached his or
her thirteenth birthday and the claim involves an injury to the person's
reproductive system, he or she is subject to the period of limitations
set forth in section 5838a.

(9) If a person was serving a term of imprisonment on the effective
date of the 1993 amendatory act that added this subsection, and that
person has a cause of action to which the disability of imprisonment would
have been applicable under the former provisions of this section, an
entry may be made or an action may be brought under this act for that
cause of action within 1 year after the effective date of the 1993
amendatory act that added this subsection, or within any other applicable
period of limitation provided by law.

(10) If a person died or was released from imprisonment at any time
within the period of 1 year preceding the effective date of the 1993
amendatory act that added this subsection, and that person had a cause of
action to which the disability of imprisonment would have been applicable
under the former provisions of this section on the date of his or her
death or release from imprisonment, an entry may be made or an action may
be brought under this act for that cause of action within 1 year after
the date of his or her death or release from imprisonment, or within any
other applicable period of limitation provided by law.

(11) As used in this section, "release from imprisonment" means
either of the following:

(a) A final release or discharge from imprisonment in a county jail.

(b) Release on parole or a final release or discharge from imprisonment
in a state or federal correctional facility.

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