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REAL ESTATE 3: Can you take your neighbor’s land by Adverse Possession?

The property in this litigation relates to four separate parcels.  Three parcels and an L-shaped, .59-acre parcel to the northeast of the others.  In the past, it was the intent to convey all four parcels, but only the first three parcels were conveyed. The .59-acre parcel was mistakenly omitted from these transactions and became the subject of this litigation; we refer to it in this opinion as “the disputed property.”

The previous owners possessed all four parcels, believing the parcel that was mistakenly omitted was theirs.  They conveyed the properties to plaintiffs in September 2005. The disputed property was again omitted from this conveyance by mistake. Plaintiffs began possessing all four parcels, including the disputed property, believing it had been conveyed to them with the other three parcels. In 2010, they began constructing a barn that was partially situated on the disputed property.  Later that year, plaintiffs defaulted on their mortgage. Because their mortgage did not extend to all parcels, two of the lots were not seized, and after their period of redemption expired, plaintiffs moved into the mobile homes located on these two lots and continued to use the disputed property.

Defendants purchased the defaulted parcel from Fannie Mae in September 2012, they moved into the house on that property, and disputes between the parties about plaintiffs’ use of a well and a petroleum tank on defendants’ land arose shortly thereafter. Defendants subsequently installed a fence along the eastern boundary of their property that blocked an easement used by plaintiffs. During this time, defendants learned that the disputed property had not been conveyed to them. After visiting their local tax assessor, who determined that the disputed property still belonged to the original owners, defendants contacted the original owners, who then deeded the disputed property to them.

Defendants served plaintiffs a notice to quit that requested that they remove their belongings from the disputed property. Plaintiffs refused and claimed superior title to the parcel by adverse possession. Plaintiffs filed an action to quiet title based on their adverse possession claim.  A trial was held on May 4, 2016, and the court awarded the disputed property to plaintiffs.

To prevail on a claim of adverse possession, plaintiffs must show that they possessed the disputed property openly, adversely, exclusively, and continuously for at least 15 years. A party making an adverse possession claim can meet the time requirement by tacking their possessory period to that of their predecessors in interest with whom they are in privity of estate.  Because plaintiffs were in possession of the disputed property for only nine years at the time, the success of plaintiffs’ adverse possession claim depended in part on tacking.

When a deed leaves out disputed property, tacking of possessory periods of successive occupants is permissible.  The previous owners showed plaintiffs around the properties and the boundary lines as they understood them, and even pointed out a dead tree to mark the boundary in the northeast corner of the disputed property. Also, plaintiffs took actual possession immediately afterwards. As such, there was privity of estate between plaintiffs and their predecessors in interest, and their successive periods of adverse possession may be tacked.

Defendants challenged the exclusivity of plaintiffs’ possession, arguing that the exclusivity of their possession was precluded by defendants’ barn being partially on the disputed property and by Fannie Mae’s possession of the parcel following the foreclosure. The fact that defendants’ barn allegedly encroaches on the disputed property does not vitiate the exclusivity element of plaintiffs’ adverse possession claim. That defendants own a barn that is situated partially on the disputed property does not necessarily mean that they or any prior owners possessed the disputed property. Ownership and possession are different concepts, and adverse possession jurisprudence is concerned with possession, not ownership. Similarly, Fannie Mae’s seizure of any parcel other than the disputed property is not dispositive regarding the title of the disputed property. Fannie Mae seized the parcel that was secured by plaintiffs’ mortgage and only that parcel. Defendants had not set forth anything in their appellate brief indicating that Fannie Mae possessed the barn.

The lower court did not err in finding that plaintiffs’ possession was exclusive.

Are you involved in a real estate dispute in Michigan?  Boundary dispute?  Neighbor dispute? Are you seeking an efficient and effective resolution to a property litigation matter?  If you are facing a real estate dispute, seek the advice of an experienced and skilled real estate litigation attorney.

Contact Aldrich Legal Services

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