In the last post, I detailed Michigan legislature’s amendments to squatting laws. Essentially, the amendments criminalize squatting in a dwelling and empowers landowners to remove squatters from their land by virtually any method short of a physical confrontation. These amendments are relevant for urban farmers that are currently utilizing property to which they have no legal interest, meaning property that they neither own, lease, or have rights of use.
This leaves urban farmers who have no interest in their land in a bit of a bind. On one hand, acquiring a legal interest in the property being utilized in the form of a lease or license agreement may protect the urban farmer from having their farm demolished by the landowner overnight. On the other hand, if a farmer enters into a legal agreement regarding the property, they will be unable to claim title to the land by adverse possession in the future. Therefore, it is important for urban farmers to be familiar with the basic requirements to how one can obtain legal title to property via adverse possession and to weigh their options and decide whether they want to secure a lesser interest today—either in the form of a lease or license—or hold out and hope to acquire full ownership rights later by way of adverse possession.
Acquiring ownership to property by adverse possession has a long history in Michigan common law. Since the 19th century, the Michigan Supreme Court has recognized adverse possession as a means for a long-time possessor of real property to acquire legal title to the property at issue. Later, the Michigan legislature recognized the common law doctrine of adverse possession.
Under Michigan law, for one to acquire title to real property by adverse possession, they must meet numerous requirements. There possession must be “actual, continuous, visible, notorious, distinct, and hostile” for a period of at least 15 years. Notably, one does not need to enter land lawfully to be eligible to acquire land by adverse possession; even a trespasser my acquire property under this doctrine. However, a person seeking to acquire title to property by adverse possession must maintain all the above requirements for a period of 15 years. Further, Michigan courts presume title in favor of the true owner and require the possessor to establish every element by clear proof.
The first key elements regarding adverse possession concern the nature of the possession. The law states that possession must be “actual, continuous, visible, and notorious.” Essentially, this means that a possessor must take “acts of ownership…of such character as to openly indicate an assumed control or use such as is consistent with [the] character of land in question.” An act of ownership include, but is not limited to, erecting a fence around the property or cultivating crops upon the property.
However, it is not just the nature of the possession that matters. The possession must also be hostile to the interest of the owner. While this does not mean that the possessor must inform the owner of their act of possession, it does mean that one’s possession must be without permission and against the interest of the owner. If a possessor has previously been granted permission to utilize the property at issue, there must be a distinct and positive assertion of a right hostile to that of the owner, and such assertion must be brought to the attention of the owner. If there has been no previous permission, the possessor need only utilize the property in such a way that it would be clear to the landowner that the use is adverse to their ownership interest.
For urban farmers that are farming property which they have not been granted permission to utilize, it is possible that the farmer may meet the legal requirements for obtaining title to property by adverse possession. In order to do so, the urban farm must be continuously maintained on the property for 15 years. Obviously, this is a long-term strategy for acquiring property and any break in occupation of the property will restart the 15 year occupancy requirement. Further, urban farmers who continue to possess the property at issue despite being told by the landowner to leave may be guilty of a misdemeanor under the Michigan Penal Code. Urban farmers also risk being restricted from accessing their farm, and even risk having their farm destroyed by the landowner, at any point. However, for many urban farmers facing obstacles regarding land acquisition, this is a solution that they must be aware of. Given the increasing amount of land speculation from distant individuals and businesses, it may be possible to acquire title to property via adverse possession. However, such a strategy will not come without risks.